Virginia Assault and Battery & Domestic Assault on a Family or Household Member Laws and Defenses Explained by a Virginia Criminal Defense Attorney


This article is written by criminal defense attorney Marina Medvin, who is located in Alexandria, Virginia, and Fairfax, Virginia. She represents individuals charged with the crimes described below in Fairfax, Alexandria, Arlington, Fairfax, Falls Church, Vienna, Manassas, and Prince Prince William. Please call (703)870-6868 for a consultation request.

MISDEMEANOR ASSAULT AND BATTERY STATUTES / PENALTIES

The Assault and Battery / Simple Assault statute are explained in VA Code section 18.2-57. Assault committed with a group is charged under VA Code 18.2-42 as assault or battery by a mob. These types of assault are punished as a class 1 misdemeanor. The maximum jail time is one year, and the maximum fine is $2,500 – in addition to restitution for medical expenses of the victim.

WHAT IS ASSAULT?

Assault and battery are not the same thing. Assault is a threat, with the means to carry out a battery, that put the victim in reasonable fear of offensive touching, harm or danger. The victim must fear that the harm is imminent – that is is coming immediately, as opposed to some time later. So, threats over the phone would not count as assault under this statute (although threats over a phone are punished as a separate crime described below).  

WHAT IS BATTERY?

The Virginia courts define battery as simple touching of another, whether willfully or in anger; this includes touching done to be rudeness or to insult. This includes being touched by objects set in motion by the defendant, such as whips and even a defendant’s dogs! The difference from assault is that basic assault does not require actual touching. Accidental, non-reckless touching is not considered a battery, and an “accident” is a defense to this charge. Additional defenses include: consent to the touching (such as agreeing to participate in a boxing match) and self-defense. (Self-defense is explained in the following article – Virginia Law on Self Defense and Defense of Others Revealed and Explained). A victim’s words, no matter how insulting, will not excuse a battery without him touching you first. However, the victim’s conduct, including provocation and insulting words, is admissible to mitigate the punishment.  

DOMESTIC ASSAULT / ASSAULT AND BATTERY ON A FAMILY MEMBER

While this crime has the same elements and penalties as the other assaults, the difference is that the victim must have been a member of the family or the household. The benefit to this charge is that there is a first-time offender program, that if your lawyer can get the prosecutor to agree too, would result in a dismissal of this charge with the completion of an anger management or related program.  

VIRGINIA HATE CRIME PUNISHMENT

If the victim was intentionally selected because of race, religion, color or ethnicity, there is a mandatory sentence of 6 months in jail, the first 30 days of which is a mandatory minimum to serve. Mentioning racial slurs prior to making an unprovoked attack is sufficient to prove intentional selection based on hate. If the victim was selected because of race, religion, color or ethnicity and the assault/battery results in personal injury, Virginia law elevates the offense to a class 6 felony with the same mandatory minimum penalties.  

ASSAULT WITH A GUN / FIREARM

Assault with a gun is also a class 1 misdemeanor, but this type of assault is discussed in more detail in the article Virginia Gun, Firearm, and Weapon Law Revealed and Explained.  

ASSAULT ON A POLICE OFFICER / LAW ENFORCEMENT OFFICER / FIREFIGHTER

When in the performance of their official duties, attacks on law enforcement officers are elevated for purposes of punishment. So, the same assault and battery elements will result in a class 6 felony conviction – with a mandatory required minimum jail sentence of 6 months. This is punished by up to 5 years in prison, with up to a $2,500 fine. Assault / battery on a probation officer is a class 5 felony with up to 10 years in jail. Disarming the police officer is a class 1 misdemeanor, but if the weapon that you took was a stun gun / taser or a gun, then it’s a class 6 felony.  

FELONY MALICIOUS WOUNDING AND FELONY UNLAWFUL WOUNDING

The Maiming Statute – Virginia Code § 18.2-51 – states: If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony.” This crime is punishable by up to 20 years in jail, with a 5 year mandatory minimum sentence, and up to a $100,000 fine. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony. This is punished by up to 5 years in prison, with up to a $2,500 fine.

Malicious wounding must be proven by the government as follows:
1) Intended to maliciously wound, injure, cut, stab, shoot someone with intent to maim, disfigure, disable or kill that person, and
2) committed a direct but ineffectual act towards this purpose. The accused can cause this injury with his hands and knees as much as with a knife, machete or sharp jewelry.
“Any means” under this section includes using your dog or pit bull to inflict the injuries. Malice is defined generally as the ill will to do something, or an intentional and wrongful act without legal justification. A wound is defined in Virginia as a breaking of the skin. (If you see blood in a fight, skin has been broken.) An injury in Virginia is defined as internal or organ damage. There is no requirement of severe injury or disfigurement. To have the requisite intent under this law, the accused must have intended to inflict a permanent wound. It is not required that the wound be in fact permanent, or even severe, but only that the accused intended to cause such harm.

If the wound was in fact permanent, disfiguring, or severe, the accused would be charged under Virginia Code Section 18.2-51.2, the Aggravated Malicious Wounding statute. Aggravated Malicious Wounding is punished as a class 2 felony, by up to life in prison, and have a minimum prison sentence of 20 years, with a fine of up to $100,000. (This is the same penalty as a murder charge!)

Intent may be inferred from acts or words the accused used during and prior to the fight. But, intent can also be inferred from the final act when the intentional act could reasonably lead to a wounding injury. There is a presumption in the law that the natural and necessary consequences of an act were intended by the accused when he carried out the act. Of course using weapons or a dog easily triggers the inferred intent as described above. Using fists, however, is a different story. The only way that punching someone with your fists can lead to an inference of intent for one of the results described in the statute is if the beating is so violent or brutal that it can reasonably be concluded that the accused had such intent. Thus, even if the blows don’t cause disfigurement, if they were carried out with strong violence or brutality, this felony wounding statute would apply. An example of a case where the accused was convicted of malicious wounding for punching someone was in Clark v. Commonwealth, where the accused continued punching the victim after he was down and had to be pulled away by others before he would stopped. The courts look at the severity of the punches and the number of blows. Unlawful Wounding lacks the malice that is required for Malicious Wounding, and so it serves as a lesser-included offense of this statute.

Assault and Battery, the misdemeanor charges for beating someone, is also a lesser-included offense of this code section. While the maiming law specifically punishes wounding as a felony, the Battery statute punish misdemeanor beating / touching.

Read more about Malicious Wounding laws and defenses here: Virginia Felony Malicious Wounding Laws, Penalties, and Defenses Explained by a Virginia Criminal Defense Attorney +

ASSAULTS AND THREATENING WHILE COMMITTING A ROBBERY

There is a 5 year mandatory minimum prison sentence for anyone who commits and assault, battery, or threatens a victim during the commission of a robbery. The act is also charges as a felony. Va Code 18.2-58 states, “If any person commit robbery by partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for life or any term not less than five years.”  

THREATENING OVER A TELEPHONE

Virginia has a law to punish threats made over telephone calls. VA Code 18.2-427 punishes the use of profane, threatening, or indecent language over public airways or by other methods. “Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.” Threats are punished the exact same way as regular assault & battery – up to 1 year in jail.  

THREATS IN WRITING OR E-MAIL

Putting a threat in writing or email is a Class 6 felony punished by up to 5 years in prison, when you make a threat to kill or hurt a person or a member of his family AND your threat places that person in reasonable apprehension of death or injury to himself or his family member. This is the same fear that is defined in assault law, yet lacks the immediacy requirement in assault law. (VA Code 18.2-60). Additionally, assault, with its higher legal requirements actually has a lesser criminal penalty. As such, threatening someone in writing is a much more serious offense than doing it in person.  

*This article is for your personal information only and is not intended as legal advice. Nothing herein shall create an attorney – client relationship. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a lawyer. Always consult a licensed lawyer for your particular case. Call 703.870.6868 for a consultation.