Assault vs. Battery

Assault vs. Battery

Criminal Defense Attorney Fairfax VA 

Assault vs. BatteryIn pop culture and colloquial parlance, assault and battery is one cause of action, often prosecuted as one action. In reality, assault and battery are two separate legal causes of action that can be two separate crimes, and one need not necessarily go hand in hand with the other. If one is charged with one, an understanding of both is a valuable asset, so that it can be understood whether or not a second charge may follow.


Virginia law defines assault as knowingly engaging in conduct that places a person in reasonable apprehension of a battery. The important distinction to be made is that assault need not require any kind of physical contact – putting someone in fear of battery being committed against them can in theory be done by speaking or many other actions that do not require touching. For example, someone making verbal threats may be found guilty of assault. Also, the provision requiring ‘knowing’ conduct is important in this regard, as accidents are generally held to be non-criminal in nature.

Assault on its own is generally prosecuted as a misdemeanor, if it is prosecuted at all. However, it can be upgraded into aggravated assault if certain characteristics are present – for example, the degree of injury, the weapon used, or the location of the offense (such as a school or government building) can put an offense on more serious footing. Aggravated assault is a felony in most cases, while simple assault is a misdemeanor.


Assault is putting someone in fear of a battery – a battery is actually engaging in physical contact of an insulting or unwanted nature or causing bodily harm to an individual. Intent creates the offense – one cannot have a battery without intent to commit one, meaning that if intent cannot be proven, any case against a defendant may fall apart. As with assault, if certain factors such as location or degree of injury are deemed to warrant it, the charge may be elevated to aggravated battery.

Simple battery is perhaps the most common crime a defendant will seek to expunge from their criminal record, given that it and simple assault are both misdemeanors for which court supervision is a common sentence. Be advised that any proceeding which results in a conviction may not be eligible for expungement. Sealing is unfortunately not an option for assault or battery, given that state laws prohibit the sealing of records of crimes of violence, which both assault and battery are by definition. Your criminal defense attorney can advice you what legal options you may have.

Contact an Experienced Fairfax VA Attorney

Assault and battery are common charges for defendants to face, but they are often misunderstood or misinterpreted. In order to help ensure an outcome no more harsh than necessary, consulting a knowledgeable criminal defense attorney can be a good first step. Dave Albo – Attorney is happy to help answer questions and assist individuals in determining their best path forward. Contact us today to set up a free consultation with a criminal defense attorney Fairfax VA clients depend on.



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