What is Considered Assault? (And What to Do if You’re Charged)

Note: This article was originally published September 3rd 2019 and was updated on March 14th 2024 

Getting into a physical altercation with someone is rarely planned. However, fights happen, and it’s important to know what assault is under the law before you find yourself on the wrong side of a legal battle.

We have all heard the terms assault and battery. However, what are they exactly? Did you know that assault and battery are two separate legal concepts? Some states split assault and battery into two separate charges, but whether or not they’re charged together or separate, one thing remains consistent across all states: you can pursue both assault and battery via a civil lawsuit.

Assault charges are quite common — research shows that there are over 800,000 assault cases reported each year. Read on to find out more about what is considered assault and what you should do when facing assault charges.

what is considered assault?

What Is Considered Assault?

An assault is an illegal threat or an attempt to cause harm to another person. It is an intentional attempt to use force or violence to injure someone.

The main difference between assault and battery is that no physical contact is necessary for you to face assault charges. When it comes to battery, there has to be evidence of actual physical contact. The severity of assaults ranges from minor threats to near-fatal incidences.

An assault is a crime and a tort. This means you may face both criminal and civil liability. If you are facing assault charges, you will need a good criminal defense lawyer to handle your case.

A criminal assault conviction can result in imprisonment, a fine, or in some cases both. In cases of civil assault, the victim can also be entitled to some monetary compensation from the assailant.

what is assault and battery

Categories of Assault

There is one way to determine the category of an assault — this is the degree of assault. There are two main categories of assault; simple and aggravated.


1. Aggravated Assault

The penalty for aggravated assault is usually more severe because it is a more serious offense. Aggravated assault is when there is a weapon in play during the attack.

An aggravated assault is an attack or attempted attack using a weapon like a knife, gun, baseball bat, or any other object that can cause bodily harm. Regardless of whether you used the weapon or threatened to use it, you will still face an aggravated assault charge if there was a weapon present.

The severity of the assault charge will depend on:

  • The weapon used
  • The status of the victim
  • The perpetrators intent
  • The degree of the injury caused

An aggravated assault charge does require physical harm as long as the weapon used caused the victim to fear for their safety. This is because fear is more grievous than injury. Some jurisdictions classify this as a felony and it can result in imprisonment.


2. Simple Assault

Simple assault is a threat or attack without a weapon. A simple assault can result in no injury or minor injuries like a black eye, scratches, swelling, or cuts and bruises.

Crimes of assault, whether simple or aggravated, involve intentional harm. This means that if you commit any physical attack or even a threat of an attack with the intention of causing any injuries, you will be facing assault charges.

You can face simple assault charges in two situations:

  • A failed attempt: For example, trying to strike someone but not making any contact with their body
  • A threatening act: Causing someone to be in fear that you are going to physically attack them; for example, waving your fist at someone and they believe that you will hurt them or using your words to deliver a threat

It is important to note that sexual assault is classified as this type of assault and can lead to severe punishment under the law.


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Commonly Asked Questions About Assault Charges

While there are different types and degrees of altercations, you should know how far you shouldn’t go, regardless of how angry you are. Misinformation can lead you to the wrong side of the law. Here are a few questions asked when trying to find out what is assault.


Is Pushing Someone Considered Assault?

An act of violence is an assault when done intentionally. This means if the shoving is accidental then it will not be an assault. However, if there is enough proof of intent, then it is an assault. So, yes, pushing can be an assault charge if done intentionally. 


Can You Be Arrested for Fighting?

Fighting, whether in public or private, can lead to several legal charges, including an assault charge. 

  • You can be charged with disturbing the peace, which is mostly a misdemeanor, and face up to 90 days jail time in county jail and/or a fine of $400
  • You can face assault charges
  • You could also be charged with battery

Remember, whether it is a bar fight, a friendly fight, or even a high school fight, there can be legal consequences depending on the violence and injuries sustained.


Can You Be Charged with Assault If You Were Hit First?

The simple answer to this is yes, you can be charged with assault even if you were hit first. If there is proof of intent, you can still face assault charges even if the other party threw the first punch. However, if this was a result of self defense, then your assault attorneys can help you get the charges dropped. This particularly important in states like Maryland where you have the right to retreat vs the right of standing your ground. 


What to Do When Charged with Assault?

When facing assault charges, the case is normally assigned to a judge. It ultimately goes to trial if the charges are not dropped or the perpetrator does not enter into a plea deal.

The prosecutor has to prove all the elements of the assault to get a conviction. These elements can vary depending on the state. They are:

  • Intent: There has to be proof that the defendant intentionally threatened or scared the victim into believing that they were going to harm them physically. The intent can be in the form of words, actions, or gestures.
  • Apprehension: Proof that the victim has perceived that the threat made by the defendant is real. If not then the threat has not created any reasonable apprehension and this element will not be fulfilled.
  • Harm: The victim must be harmed because of the threat made. The harm can be as simple as living in fear that the defendant can make good on their threat.

Should the prosecutor fail to prove even one of these elements, the verdict should then be not guilty. However, a guilty verdict will mean facing criminal charges and the punishment will depend on the severity of the crime.


Is There Any Defense to an Assault Charge?

The first thing you should do when charged with an assault is to get yourself a good criminal defense attorney. This is because lawyers know and understand the law and will be able to come up with the right defense for your case.

Just like with any other crime, there are some defenses that you can apply to help defeat the charge. Some of the common assault charges defenses include:

  • Self-Defense: If there is proof that your actions were because of trying to protect yourself from another person’s actions, then you can use this defense to get out of the charges.
  • Mistaken Identity: You did not commit the crime.
  • Defense of property: This defense is not common but you can use it if you were trying to protect your property from damage.
  • Consent: If you can prove that the victim consented to your actions then you can plead not guilty to the crime.
  • Accident: This especially works if there is no proof of intent. If there is no proof of intent, harm, or apprehension, your attorney can ask that the case be dismissed due to lack of evidence.

Note that each state has its requirements for what counts as self-defense. In some states, if you were able to flee the scene but chose to fight back, then claiming self-defense will not work for you.

Always talk to your lawyer before you claim self-defense, just in case the crime does meet your state’s requirement of a self-defense claim.


common mistakes when charged with assault 

Common Mistakes When Charged with Assault

You might not have planned to get into a bar fight when you went out for a drink, but somehow you found yourself involved in one and now the police are right next to you.

If you have never been in such a situation, it is normal to panic and this can lead to several mistakes that might work against you should there be any charges placed against you. The best thing to do in such a situation is to lawyer up.

Here are some common mistakes that people make when facing assault charges:

1. Talking To The Police

The police are trained to get information to build a case. This can include evidence against you. For example, they can call you aside, offer an icepack, and ask you what happened. When you explain the situation, an arrest and assault charge can follow. As much as this may seem unfair, it is legal, and it is also avoidable. Remember: You do not have to talk to the police.

If you do not talk to the police and they still take you into custody, they are to inform you of your right to remain silent and the right to an attorney; it is always important to familiarize yourself with your Miranda rights. If this happens, you want to remain silent until you can talk to your attorney.


2. Talking To Others About The Case

An assault can be a traumatizing event. It is perfectly natural to want to talk to your friend or family, to explain yourself or even ask for advice. Remember, when facing any charges, anything you say, whether to your best friend, siblings, or partner can be used against you in court. Stay calm and let your attorney do the talking on your behalf.


3. Posting The Incident On The Internet

You cannot help it if spectators decide to take videos and post it on their social media pages. The real problem is when you decide to post the pictures or video yourself. Avoid writing about the incident on Snapchat, Instagram, Facebook, Twitter, or any other social media forum. Especially in a high crimes city like Baltimore, it wouldn’t take long for the footage to go viral and work against you. Always give all evidence to your assault attorney and do not post it on social media.


4. Contacting The Victim

You may feel sorry for the incident and want to apologize to clear the air, but you should never contact the victim of an assault case. This may look like an act of guilt. Remember, anything you say can and will be used against you. Always talk with your lawyer about how to best go about contacting all parties involved when you’re involved in an assault case. 


5. Getting Rid Of Evidence

In cases where there was a weapon involved, whether it was used or not, do not try to get rid of the weapon. If you posted a video or picture related to the incident, do not take down the post and do not delete the video or pictures from your phone or the device that you recorded it with. Destroying evidence can land you in much more trouble.

You should try to avoid these assault mistakes so that you do not hurt your case and your assault defense. One of the things you can do to help your case is get an expert criminal defense lawyer to help you navigate how to go forward. 

Working with an experienced professional law firm will give you a fighting chance against assault charges so one of the first things you need to do is get in touch with an attorney.


how to contact an attorney for assault charges 

Get Professional Advice When Finding Out What Is Considered Assault or Facing Assault Charges

Many issues may come up when determining what is considered assault is and how best you should handle assault charges. There is a need for a thorough review of each incident to help you protect yourself and build your self defense case when dealing with assault charges. 

An experienced Criminal Attorney is the right person to help you handle any assault charges, and that’s where we come in at Saller Law. We work directly with our clients to come up with the best defense for them based on each case and set of circumstances. 

Are you facing assault charges in Baltimore? Do not waste any more time — check out our website for more information. Do not hesitate to contact us and book a free consultation to see how you can defend yourself. 

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