VIRGINIA ASSAULT & BATTERY: LAW & PENALTIES
What is assault law in Virginia? Assault and Battery, or Simple Assault, is class 1 Misdemeanor criminal charge under VA Law 18.2-57. Assault and Battery is punished by a maximum jail sentence of 1 year, a maximum fine of $2,500.00, and full restitution to the victim.
First offense Assault and Battery charges in Virginia will generally not result in the maximum penalties, unless the assaultive conduct was egregious. Nonetheless, individuals charged with a first offense are still subject to the criminal conviction, jail time, a fine, and restitution.
Furthermore, Assault and Battery charges will sometimes result in civil litigation after an Assault and Battery charge has been finalized in criminal court.
WHAT IS ASSAULT?
Assault and battery are not the same thing, even though Virginia law punishes both assault and battery under the same code section. Assault is a threat, with the means to carry out a battery, that put the victim in reasonable fear of a battery – 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. This is commonly charged as Simple Assault.
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! Battery variates from assault is that battery requires physical contact but 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. 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.
Police officers sometimes mistakenly refer to Battery as Simple Assault in drafting paperwork. While the designation may be incorrect, the charge of Assault and the charge of Battery are both codified and proscribed in the same code section, and are penalized in the same manner.
Virginia’s Assault & Battery Law § 18.2-57. Assault and battery; penalty.
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 anywhere in the Commonwealth, 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 employee 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 in a hospital or in an emergency room on the premises of any clinic or 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.
Penalty Table for Virginia Assault Charges
|Description of Offense||Code Section||Criminal Classification||Maximum Jail||Minimum Jail||Maximum Fine|
|Simple Assault||Va. Code 18.2-57||Class 1 Misdemeanor||12 months||N/A||$2,500 Fine|
|Assault & Battery||Va. Code 18.2-57||Class 1 Misdemeanor||12 months||N/A||$2,500 Fine|
|Assault on Family Member||Va. Code 18.2-57.2||Class 1 Misdemeanor||12 months||N/A||$2,500 Fine|
|Assault on Law Enforcement||Va. Code 18.2-57||Class 6 Felony||5 years||6 months||$2,500 Fine|
|Assault as Hate Crime||Va. Code 18.2-57||Class 1 Misdemeanor||5 years||1 month||$2,500 Fine|
|Assault as Hate Crime w/ Injury||Va. Code 18.2-57||Class 6 Felony||5 years||1 month||$2,500 Fine|
|Unlawful Wounding||Va. Code 18.2-51||Class 6 Felony||5 years||1 year||$2,500 Fine|
|Malicious Wounding||Va. Code 18.2-51||Class 3 Felony||20 years||5 years||$100,000 Fine|
|Strangulation||Va. Code 18.2-51.6||Class 6 Felony||5 years||5 years||$2,500 Fine|
Domestic assault, charged under Va Code 18.2-57.2, is generally charged in Virginia when a family member or a household member injures or pushes another family or household member. While the legal definitions of assault and battery are more broad than that, the charges are generally only pursued by the police in cases where there was an actual injury, markings, or a significant emotional impact on the victim.
Individuals charged for this offense or victimized may be a husband, wife, mother, father, cousin, sister, brother, parent, grandparent child, girlfriend, boyfriend, roommate, etc.
Battery conduct examples include: pushing, hitting, punching, slapping, beating, spanking, striking, smacking, throwing, etc. Threatening these action can also be charged as an assault crime if the assailing individual puts their victim in a reasonable fear of imminent harm – which means the accused must have perceivably immediate ability to carry out the threat. So, threats over the phone would not count as assault.
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. 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.
SPANKING A CHILD AS DOMESTIC ASSAULT
The Virginia Court of Appeals has described this issue in this way: while parents may administer such reasonable and timely punishment as may be necessary to correct faults in a growing child, this right cannot be used as a cloak for the exercise of “uncontrolled passion.” A parent who becomes uncontrolled during administration of corporal punishment may be criminally liable for assault and battery if the mother of father inflicts corporal punishment that exceeds the bounds of “due moderation.” The court looks at whether punishment had been moderate or excessive by analyzing the following factors: the circumstances surrounding the punishment, age, size and conduct of the child, the nature of the misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child. In the most famous curling by the Virginia Supreme Court, the court simply concisely that, “the undisputed evidence as to the wounds and bruises on the body of this child showed that he had been cruelly and brutally beaten.”
Examples where criminal fault for excessive parental discipline has been found by the court:
– beating of five-year-old child caused badly bruised buttocks with blood seepage and purple marks and welts on both legs such that the outer layer of skin stuck to the child’s underpants
– beating of seven year-old child resulted in open and bleeding bruises across her entire body and a large bleeding gash on her face
– child struck in head with telephone causing bleeding
– ten-year-old child smacked on face once or twice with a closed hand, causing a laceration in the corner of the boy’s right eye, another upon his nose area, and a scrape on his right shin
– three-year-old child beat fifteen times with belt causing extensive bruising that required hospitalization
– child shackled to floor of bus and beaten on the head and body, causing death
Read more about Domestic Assault here: Virginia Domestic Assault Laws & Penalties: Defense Attorney’s Explanation of Va Code 18.2-57.2 Assault and Battery Against a Family or Household Member
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.
Strangulation is defined as impeding the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person – resulting in the wounding or bodily injury of such person.
VIRGINIA HATE CRIME FELONY
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.
Threats Under VA Law
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.
Virginia Assault & Battery Law Overview: Jump to-
- Virginia Assault & Battery Law, Simple Assault Law
- VA Assault & Battery Penalty Table
- VA Domestic Assault Law
- Firearm Assault Charges
- Felony Assault Charges
- Assaultive Threat Charges