Assault and Battery

Assault & Battery Attorney in Fairfax VA

What is the exact criminal law in Virginia for Assault and/or Battery?

§ 18.2-57. Assault and battery.

A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a law-enforcement officer as defined in subsection F, a correctional officer as defined in §53.1-1, a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in §65.2-102, or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time teacher, principal, assistant principal, or guidance counselor of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to §18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider as defined in §8.01-581.1 who is engaged in the performance of his duties as an emergency health care provider in an emergency room of a hospital or clinic or on the premises of any other facility rendering emergency medical care is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall include a term of confinement of 15 days in jail, two days of which shall be a mandatory minimum term of confinement.

F. As used in this section:

“Judge” means any justice or judge of a court of record of the Commonwealth including a judge designated under §17.1-105, a judge under temporary recall under §17.1-106, or a judge pro tempore under §17.1-109, any member of the State Corporation Commission, or of the Virginia Workers’ Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court.

“Law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office that is part of or administered by the Commonwealth or any political subdivision thereof who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to §10.1-115, any special agent of the Department of Alcoholic Beverage Control, conservation police officers appointed pursuant to §29.1-200, and full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to §46.2-217, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§15.2-1731 and15.2-1733, auxiliary deputy sheriffs appointed pursuant to §15.2-1603, police officers of the Metropolitan Washington Airports Authority pursuant to §5.1-158, and fire marshals appointed pursuant to §27-30 when such fire marshals have police powers as set out in §§27-34.2 and27-34.2:1.

“School security officer” means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school.

G. “Simple assault” or “assault and battery” shall not be construed to include the use of, by any teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver or school bus aide, while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a teacher, teacher aide, principal, assistant principal, guidance counselor, school security officer, school bus driver, or school bus aide at the time of the event.

What must be proven to convict me of Assault?

• The complainant must prove beyond a reasonable doubt every element listed below:

You intentionally,

• • Committed an overt act intended to do bodily harm to the victim and you had the immediate abilit, to cause said bodily harm; or

You intentionally,

• • Committed an overt act intended to place the victim in fear or apprehension of bodily harm and said overt act created in the victim a reasonable fear or apprehension of bodily harm.

Additional Notes:

• • “Overt act” means to make a physical gesture or movement. For example, swinging your fists at the victim and throwing an object at the victim are physical movements intended to do bodily harm to the victim. Whereas, walking closer to the victim, rolling up your sleeves, removing your shirt to prepare for a fight, and pounding your fists are physical movements intended to place the victim in fear or apprehension of bodily harm.
  • Threatening words alone do not constitute an assault.
  • Physical contact with the victim is not required for assault.
  • The actual ability to inflict bodily harm is not required for assault.

What must be proven to convict me of Battery?

• The complainant must prove beyond a reasonable doubt every element listed below:
  •  You willfully, made unwanted, physical contact to the victim, in an angry, rude, insulting or vengeful manner using your body or by some means set in motion by you.

Additional Notes:

• • Actual harm or offense to the victim is not required for battery.
  • However, if serious bodily injury resulted to the victim and the victim survived, you may be charged with unlawful wounding, malicious wounding, aggravated malicious wounding and/or attempted murder, which are all “greater-included” offenses of assault and battery.
  • The doctrine of transferred intent holds that if you intended to commit a battery against person A, but accidentally committed a battery against person B, you are guilty of battery to person B. Likewise, if you intended to commit an assault against person A, but accidentally committed a battery against person A, you are guilty of battery to person A.

What is the maximum punishment for Assault and/or Battery?

• Assault and/or battery is a Class 1 misdemeanor, which is punishable by a maximum jail sentence of 12 months and/or a maximum fine of $2,500.00.
• If the battery was intentionally based on the victim’s race or religion and bodily injury resulted to the victim, the charge is elevated to a Class 6 felony, which is punishable by a prison sentence of not less than one (1) year nor more than five (5) years and/or a maximum fine of $2,500.00; or is punishable by a maximum jail sentence of 12 months and/or a maximum fine of $2,500.00.
• If the assault and/or battery was committed against a law enforcement office and said law enforcement officer was engaged in the performance of his or her public duties and you knew or should have known the victim was a law enforcement officer, the charge is elevated to a Class 6 felony, which is punishable by a prison sentence of not less than one (1) year nor more than five (5) years and/or a maximum fine of $2,500.00; or is punishable by a maximum jail sentence of 12 months and/or a maximum fine of $2,500.00.

What is the “mandatory minimum” punishment for Assault and/or Battery?

• If the assault and/or battery does not fall within any of the bullets listed below this question, there is no mandatory minimum active jail sentence.
• Specific circumstances that require a mandatory minimum active jail sentence:
  • If the assault was intentionally based on the victim’s race or religion, there is a mandatory minimum active jail sentence of 30 days.
  • If the battery was intentionally based on the victim’s race or religion and bodily injury resulted to the victim, there is a mandatory minimum active jail sentence of 30 days (this is a felony).
  • If the assault and/or battery was committed against a law enforcement officer and said law enforcement officer was engaged in the performance of his or her public duties and you knew or should have known the victim was a law enforcement officer, there is a mandatory minimum active jail sentence of six (6) months (this is a felony).
  • If the battery was committed against a school official and said school official was engaged in the performance of his or her official duties and you knew or should have known the victim was a school official, there is a mandatory minimum active jail sentence of two (2) days.
  • If the battery was committed against a school official and said school official was engaged in the performance of his or her official duties and you knew or should have known the victim was a school official and you used a weapon that was prohibited on school property and you were on school property when you committed the battery with said weapon, there is a mandatory minimum active jail sentence of six (6) months.
  • If the battery was committed against a health care provider and said health care provider was engaged in the performance of his or her official duties and you knew or should have known the victim was a health care provider and you were on the premises of a medical facility when you committed the battery, there is a mandatory minimum active jail sentence of two (2) days.

What are the consequences to a conviction for Assault and/or Battery?

• Permanent criminal record that cannot be expunged
• Court costs
• If you are convicted of a felony, loss of civil rights such as the right to vote, sit on a jury, possess a firearm, etc.
• Possible active jail time up to 12 months for a misdemeanor or felony conviction
• Possible active prison time up to 5 years for a felony conviction.
• Possible fine
• Possible restitution to the victim for his or her incurred medical expenses
• Possible anger management classes
• Possible period of uniform good behavior
• Possible community service hours
• Possible protective order or no-contact order that prohibits direct and indirect contact with the victim
• Possible effect on current and/or prospective employment
• If you have a government security clearance, possible effect on current and/or prospective government security clearance.
• If you are a non-U.S. citizen, possible effect on current and/or prospective immigration status

What are defenses to Assault?

Statute of limitations for misdemeanors

• • Pursuant to Va. Code §19.2-8, if you have received a misdemeanor assault charge more than one (1) year after the occurrence of the assault against the victim, the charge must be dismissed for failure to timely prosecute. However, this defense does not apply to a felony assault charge because there is no statute of limitations for for felonies in Virginia.

Improper venue

• • If the evidence cannot and/or does not prove that the assault occurred in the city or county in which you are charged, the charge must be dismissed.

Lack of probable cause to arrest

• • If the evidence proves that the totality of the circumstances prior to your arrest does not constitute “probable cause” to believe that you committed an assault, the evidence must be suppressed and, as a result, the charge must be dismissed.
  • Probable cause requires the complainant to prove a low amount of evidence, which is usually easy for the complainant to do.

Mistaken identity

• • If the evidence proves that you were not the one who assaulted the victim, the charge must be dismissed.

No intention to commit an overt act

• • If the evidence proves that you did not intend to move your body, the charge must be dismissed since you have acted unintentionally.
  • For example, if you are standing inside of a bus and the bus driver abruptly applies the brakes and causes you to almost push another passenger, you have not committed an assault because you did not intentionally move your body.

No overt act

• • If the evidence proves that you used only words to threaten the victim, the charge must be dismissed.

No present ability to cause harm

• • If the evidence proves that you did not have the immediate ability to cause bodily harm to the victim, the charge must be dismissed if the evidence also proves that you did not commit an overt act intended to place the victim in fear of bodily harm and did not create in the victim a reasonable fear of bodily harm.

No fear of apprehension to the victim

• • If the evidence proves that your overt act did not create in the victim a reasonable fear of bodily harm, the charge must be dismissed if the evidence also proves that you did not commit an overt act intended to do bodily harm and did not have the immediate ability to cause said bodily harm.

Self defense where the victim is the initial aggressor

• • If the evidence proves that you were without fault in provoking or bringing on the fight between you and the victim and you had a reasonable fear that you were in immediate danger of bodily harm by the victim and you attempted or threatened to use no more force than was reasonably necessary to protect yourself from the perceived bodily harm by the victim, you may claim self defense. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.
  • To clarify, the law in Virginia holds that if you were without fault in provoking or bringing on the fight between you and the victim, you have no duty to retreat from the fight, which means that you do not have to move away from the victim and may stand your ground to defend yourself. Moreover, the force you attempt or threaten to use against the victim must be less than or equal to the degree of bodily harm you perceived by the victim.

Self defense where the accused is the initial aggressor

• • If the evidence proves that you were to some degree at fault in provoking or bringing on the fight and you retreated as far away from the fight as you safely could in a good faith attempt to abandon the fight and you spoke or acted in a way that made your desire for peace known and you had a reasonable fear that you were in immediate danger of bodily harm by the victim and you attempted or threatened to use no more force than was reasonably necessary to protect yourself from the perceived bodily harm by the victim, you may claim self defense. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.
  • To clarify, the law in Virginia holds that if you were to some degree at fault in provoking or bringing on the fight between you and the victim, you have a duty to retreat from the fight, which means that you must move away from the victim as far as safely possible and may defend yourself only as a last resort. Moreover, the force you attempt or threaten to use against the victim must be less than or equal to the degree of bodily harm you perceived by the victim.

Defense of others

• • If the evidence proves that you reasonably believed, regardless of the actual circumstances, that the person you defended was entitled to use self-defense against the victim and you attempted or threatened to use no more force than was reasonably necessary to protect said person from the perceived bodily harm by the victim, you may claim defense of others. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.

Defense of habitation

• • If the evidence proves that you reasonably believed the victim was attempting to unlawfully enter your home – or – that the victim was unlawfully present in your home and you attempted or threatened to use non-deadly force against the victim to evict him or her from your home, you may claim defense of your home. Deadly force cannot be attempted or threatened to defend your home. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.
  • However, if the evidence proves that you reasonably believed the victim was attempting to unlawfully enter your home – or – that the victim was unlawfully present in your home and you had a reasonable fear that you or another person in your home were in immediate danger of serious bodily harm or death by the victim and you attempted or threatened to use non-deadly and/or deadly force, you may claim self defense. Deadly force may be attempted or threatened in this situation not to defend your home, but to defend yourself or another person in your home. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.

Defense of property

• • If the evidence proves that the victim damaged your property or dispossessed you of your property and, during the victim’s actions of doing so, you requested that the victim cease his damaging or dispossession of your property and the victim refused to listen to your request and you were in immediate pursuit of the victim and you attempted or threatened to use non-deadly force in order to regain possession of your property, you may claim defense of property. Deadly force cannot be attempted or threatened to defend your property. This legally justifies your assault to the victim. Accordingly, the charge must be dismissed.
  • However, after a law enforcement officer arrives on scene, you lose the right to attempt or threaten to defend your property. Furthermore, defense of property cannot be attempted or threatened against a law enforcement officer who is acting in the course of his or her official duties. Lastly, household animals are considered property under the law, which means that deadly force cannot be attempted or threatened to defend an animal.

Resisting an unlawful arrest

• • If the evidence proves that you attempted or threatened physical contact in order to resist an unlawful arrest – that is – an arrest without probable cause, the charge must be dismissed. Deadly force cannot be used when resisting an unlawful arrest.
  • However, you cannot resist an unlawful detention.

Fabrication

• • If the evidence proves that the victim is lying about your commission of an assault against him or her, the charge must be dismissed.
  • This is difficult to prove because it often times involves a credibility contest between you, the victim and/or any testifying witnesses.

Failure to prosecute on behalf of the victim

• • If the victim fails to show up for trial and there is no other evidence (e.g., your confessions to a law enforcement officer, video footage, etc.) to prove that you committed an assault against the victim, the charge must be dismissed for failure to prosecute.

What are defenses to Battery?

Statute of limitations for misdemeanors

• • Pursuant to Va. Code §19.2-8, if you have received a misdemeanor battery charge more than one (1) year after the occurrence of the battery against the victim, the charge must be dismissed for failure to timely prosecute. However, this defense does not apply to a felony battery charge because there is no statute of limitations for felonies in Virginia.

Improper venue

• • If the evidence cannot and/or does not prove that the battery occurred in the city or county in which you are charged, the charge must be dismissed.

Lack of probable cause to arrest

• • If the evidence proves that the totality of the circumstances prior to your arrest does not constitute “probable cause” to believe that you committed a battery against the victim, the evidence must be suppressed and, as a result, the charge must be dismissed.
  • Probable cause requires the complainant to prove a low amount of evidence, which is usually easy for the complainant to do.

Mistaken identity

• • If the evidence proves that you were not the one who committed a battery against the victim, the charge must be dismissed.

Consent

• • If the evidence proves that the victim consented to your physical contact, the charge must be dismissed.

Not a willful touching

• • If the evidence proves that you did not willfully move your body, the charge must be dismissed.
  • For example, if you are standing inside of a bus and the bus driver abruptly applies the brakes and causes you to push another passenger, you have not committed a battery because you did not willfully move your body. Another example, if you are sleepwalking and you punch someone, you have not committed a battery because you did not willfully move your body.

The contact was not done in an angry, rude, insulting or vengeful manner

• • If the evidence proves that a reasonable person in your situation would believe that your physical contact was not done in an angry, rude, insulting or vengeful manner, the charge must be dismissed.

Self defense where the victim is the initial aggressor

• • If the evidence proves that you were without fault in provoking or bringing on the fight between you and the victim and you had a reasonable fear that you were in immediate danger of bodily harm by the victim and you used no more force than was reasonably necessary to protect yourself from the perceived bodily harm by the victim, you may claim self defense. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.
  • To clarify, the law in Virginia holds that if you were without fault in provoking or bringing on the fight between you and the victim, you have no duty to retreat from the fight, which means that you do not have to move away from the victim and may stand your ground to defend yourself. Moreover, the force you use against the victim must be less than or equal to the degree of bodily harm you perceived by the victim.

Self defense where the accused is the initial aggressor

• • If the evidence proves that you were to some degree at fault in provoking or bringing on the fight and you retreated as far away from the fight as you safely could in a good faith attempt to abandon the fight and you spoke or acted in a way that made your desire for peace known and you had a reasonable fear that you were in immediate danger of bodily harm by the victim and you used no more force than was reasonably necessary to protect yourself from the perceived bodily harm by the victim, you may claim self defense. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.
  • To clarify, the law in Virginia holds that if you were to some degree at fault in provoking or bringing on the fight between you and the victim, you have a duty to retreat from the fight, which means that you must move away from the victim as far as safely possible and may defend yourself only as a last resort. Moreover, the force you use against the victim must be less than or equal to the degree of bodily harm you perceived by the victim.

Defense of others

• • If the evidence proves that you reasonably believed, regardless of the actual circumstances, that the person you defended was entitled to use self-defense against the victim and you used no more force than was was reasonably necessary to protect said person from the perceived bodily harm by the victim, you may claim defense of others. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.

Defense of habitation

• • If the evidence proves that you reasonably believed the victim was attempting to unlawfully enter your home – or – that the victim was unlawfully present in your home and you used non-deadly force against the victim to evict him or her from your home, you may claim defense of your home. Deadly force cannot be used to defend your home. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.
  • However, if the evidence proves that you reasonably believed the victim was attempting to unlawfully enter your home – or – that the victim was unlawfully present in your home and you had a reasonable fear that you or another person in your home were in immediate danger of serious bodily harm or death by the victim and you used non-deadly and/or deadly force, you may claim self defense. You may use deadly force in this situation not to defend your home, but to defend yourself or another person in your home. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.

Defense of property

• • If the evidence proves that the victim damaged your property or dispossessed you of your property and, during the victim’s actions of doing so, you requested that the victim cease his damaging or dispossession of your property and the victim refused to listen to your request and you were in immediate pursuit of the victim and you used non-deadly force in order to regain possession of your property, you may claim defense of property. Deadly force cannot be used to defend your property. This legally justifies your battery to the victim. Accordingly, the charge must be dismissed.
  • However, after a law enforcement officer arrives on scene, you lose the right to defend your property. Furthermore, defense of property cannot be used against a law enforcement officer who is acting in the course of his or her official duties. Lastly, household animals are considered property under the law, which means that deadly force cannot be used to defend an animal.

Resisting an unlawful arrest

• • If the evidence proves that you made physical contact in order to resist an unlawful arrest – that is – an arrest without probable cause, the charge must be dismissed. Deadly force cannot be used when resisting an unlawful arrest.
  • However, you cannot resist an unlawful detention.

Fabrication

• • If the evidence proves that the victim is lying about your commission of a battery against him or her, the charge must be dismissed.
  • This is difficult to prove because it often times involves a credibility contest between you, the victim and/or any testifying witnesses.

Failure to prosecute on behalf of the victim

• • If the victim fails to show up for trial and there is no other evidence (e.g., your confessions to a law enforcement officer, video footage, etc.) to prove that you committed a battery against the victim, the charge must be dismissed for failure to prosecute.

If there is no defense to my Assault and/or Battery charge, what are ways to avoid a conviction?

• If a prosecutor is handling your case, and depending on the facts of your case and your prior criminal record, we can advocate to have your charge amended to trespassing or disorderly conduct so that you can avoid a conviction of assault and/or battery.
• If the victim unconditionally agrees to drop the charge and the court accepts the victim’s decision, the charge will be dismissed. This rarely happens.
• If the victim asserts his 5th Amendment right against self-incrimination at trial by testifying that his testimony will implicate him or herself in a crime, the charge will be dismissed if there is no other evidence proving that you committed an assault and/or battery against the victim.
• If the victim agrees with you to enter an accord and satisfaction agreement pursuant to Va. Code §19.2-151 and the court accepts the victim’s decision, the charge will be dismissed upon your payment of court costs. However, an accord and satisfaction agreement requires that you reimburse the victim for his or her medical expenses before trial. Unfortunately, an accord and satisfaction agreement is not allowed in domestic assault and/or battery cases or assault and/or battery cases against a law enforcement officer.
• If the victim and the court agree to impose a peace bond in lieu of a conviction, the charge will be dismissed. A peace bond immediately dismisses your charge, but you are required to keep the peace for a period of time. If you are not peaceful for the prescribed period of time, you will have to pay the full amount of the peace bond and the victim may re-initiate the assault and/or battery charge against you.

Where exactly does your firm handle Assault and/or Battery cases?

• Our Northern Virginia office handles:
  • Assault and battery cases in the cities of Alexandria, Arlington, Chesterfield, Fairfax, Falls Church, Herndon, Manassas, Richmond, Stafford, Shenandoah, Spotsylvania, Warren, Winchester, Vienna and surrounding communities.
  • Assault and battery cases in the Counties of Arlington, Culpeper, Fairfax, Fauquier, Frederick, Hanover, Henrico, Loudoun, Prince William and nearby areas.
• Our Hampton Roads VA office handles:
  • Assault and battery cases in the cities of Chesapeake, Hampton, James City, King William, Newport News, Norfolk, Middlesex, Poquoson, Portsmouth, Suffolk, Virginia Beach, Williamsburg and surrounding communities
  • Assault and/or Battery in the Counties of York, New Kent, Northampton County (Eastville).

The Fairfax Criminal Defense Law firm of Jad Sarsour, represents clients throughout Northern Virginia and regularly appears in all courts, including: Fairfax County | Fairfax City | Prince William County | Arlington County | Alexandria City | Loudoun County | Federal Court (Eastern District/VA)