Matthew M. Walton P.C.
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Assault

Many people come to me facing assault charges in various contexts. It’s important to note first and foremost that what people commonly consider “assault” is slightly different than what the law considers assault. The term assault doesn’t necessarily mean hitting someone. Michigan defines assault loosely as any intentional, unlawful threat or offer to do bodily harm or injury to another by force. The person being assaulted must have a well-founded fear of imminent peril and the person assaulting must have the apparent ability to carry out the act. Battery is the actual consummation of the act, hence why Michigan and other jurisdictions often refer to assault crimes as either “assault” or “assault and battery.”

Additionally, there are two types of assault: one civil and one criminal. All assault crimes require the State to prove intent. Intent can and will be inferred from the circumstances. Secondly, the law might consider something an assault that the average American would not. For instance, it may be an assault simply to threaten to hurt someone if that person fears that they are about to, in fact, be hurt and the person threatening them has the apparent ability to do so. Conversely, tripping and falling into someone, even when the circumstances are heated, would probably not be an assault because the trip and fall was an accident, rather than an intentional act.

As noted above, assault crimes often hinge on the showing of intent. For instance, assault with becomes a far more serious crime when it can be shown the person committed simple assault (discussed above) but intended to do “great bodily harm less than murder”. People v. Boles,127 Mich.App. 759, 770, 339 N.W.2d 249 (1983). Similarly, pointing a gun at someone will typically result in the intent being inferred because the average person knows that people will fear having a gun point at them. On the other hand, showing a person your pet snake will generally not be satisfy the element of intent even when that person is afraid. If you were to show your pet snake to a person who you know to have a phobia of snakes, however, intent may be inferred from the circumstances and you could be guilty of assault. Further, Michigan statutes provide for different levels of punishment for different types of assault. For instance, MCL 750.81(4) provides a steeper minimum punishment for a person convicted of assault if they have been convicted of assault in the past. Similarly, MCL 750.81a provides harsher penalties for assaults that result in “serious or aggravated injury” even if the person who committed the assault did not intend the injury that resulted, while MCL 750.81a(3) provides even steeper punishment in the form of a felony for a person who assaults another in a domestic situation, while MCL 750.82 provides steeper punishment yet for those who commit assault with a weapon (termed “felonious assault”).

A good illustration in the different types of assault and different penalties associated with them is People v. Van Diver, 263 N.W.2d 370 (Ct. App. Mich 1977). In Van Diver, the Defendant was convicted of felonious assault and sentenced to between 2 and 4 years in prison. The Defendant appealed his conviction, arguing that because he was bare-handed during the assault, he should never have been charged, much less convicted of Felonious Assault. Felonious Assault, MCL 750.82, requires a type of weapon to be involved in the assault. But the Michigan Supreme Court has held that the type of weapon named in the statute is not intended to mean that only those can be considered weapons, but rather any variety of objects could be considered a weapon depending on how they’re used. The Court of Appeals then decided whether bare hands can be considered “dangerous weapons” for the purpose of felonious assault and noted Michigan has at least ten statutes relating to assault upon private persons; among these are “Assault and simple assault”, M.C.L.A. s 750.81; M.S.A. s 28.276, and “Assault and infliction of serious injury” (commonly referred to as aggravated assault), M.C.L.A. s 750.81a; M.S.A. s 28.276(1), both misdemeanors, and “Assault with intent to do great bodily harm less than murder”, M.C.L.A. s 750.84; M.S.A. s 28.279, and “Assault with intent to commit murder”, M.C.L.A. s 750.83; M.S.A. s 28.278, both felonies. None of these four statutes require that the actor perpetrate the assault with a dangerous weapon. Bare hands are sufficient. What distinguishes the misdemeanors, simple assault and aggravated assault, from the felonies, assault with intent to do great bodily harm less than murder and assault with intent to murder, is the actor's intended result. What distinguishes felonious assault, M.C.L.A. s 750.82; M.S.A. s 28.277, from simple assault and aggravated assault is the use of a dangerous weapon in the perpetration of the assault.” Van Diver, 80 Mich. App. 352 at 356 (1977). The court ultimately held that the use of bare hands in that case could not be considered a “dangerous weapon” in order to support a charge of felonious assault per Michigan law.

The Van Diver case goes to show that assault can be complicated and what happens ultimately depends on the circumstances. The following chart shows the different types of assault and penalties associated with each:

Assault CrimeMaximum Penalty
Attempted murderLife imprisonment
Assault with intent to murderLife imprisonment
Assault with intent to do great bodily harm10 years imprisonment
Assault by strangulation, suffocation10 years imprisonment
Assault with a dangerous weapon4 years imprisonment
Aggravated assault1 year in jail (misdemeanor)
Assault and battery90 days in jail (misdemeanor)
Domestic violence 1st offense93 days in jail (misdemeanor)
Domestic violence 2nd offense1 year in jail (misdemeanor)
Domestic violence 3rd offense5 years imprisonment (felony)

On the other hand, those who commit assault can face civil penalties on top of, or instead of, criminal charges. Assault and battery in the civil context is typically a lower threshold than the criminal form of assault and battery. Although only criminal assault is discussed in this article, if you are facing assault charges in any context you should contact my office to discuss your situation.

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