By John Mascolo, Esq. | Legally reviewed by FindLaw Staff | Last reviewed August 22, 2023
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
Assault is a crime that appears in many forms. The more serious types of assault are generally referred to as aggravated assault or felonious assault, even if some state criminal codes do not use these exact terms. In most cases, an aggravated assault is an attack that causes serious bodily injury or harm to another person or involves the use of a deadly weapon.
States classify aggravated assault as a felony charge. Offenders with an aggravated assault conviction face the possibility of prison time. In contrast, simple assaults will likely be misdemeanors and only expose an offender to jail time.
Assault crimes are aggravated (or enhanced/elevated) by a wide range of circumstances surrounding the crime. Aggravating factors may include the weapon used, the severity of the violence or harm, the type of victim targeted, or even the perpetrator's state of mind. Factors that raise an assault charge to the aggravated level can vary somewhat from state to state. Some may require a permanent injury or substantial risk of death.
Many states also have multiple degrees of criminal charges for aggravated assault. In other words, an aggravated assault under one set of circumstances may be a third-degree felony. When additional aggravating factors are present, the crime may increase to a second-degree felony or a first-degree felony.
The use of a deadly weapon during an assault can elevate a criminal case from simple assault to aggravated assault. This enhancement typically applies regardless of whether the use of the weapon actually caused any injury. A simple assault does not require evidence of physical contact or injury. Proof of an attempt to cause harm will usually suffice. A "harmless" attack with a deadly weapon becomes an aggravated assault because it tends to put the victim in serious fear for their safety. If an assault with a deadly weapon actually does result in a serious injury or risk of death, the charges and penalties could increase. For example, the intent shown by use of the weapon may also support a charge of attempted murder.
Deadly or dangerous weapons include objects designed to inflict serious harm or cause death, such as guns, knives, swords, or brass knuckles. For other objects, their classification as deadly weapons will depend on how an offender uses them. For example, a hatchet or axe is generally not considered a lethal weapon but a tool for chopping wood. If an offender throws a hatchet at a victim, it could become a deadly weapon. Similarly, when an offender drives a car at an alleged victim, it may become a deadly weapon in the eyes of the law.
More serious injuries to the victim can cause an otherwise simple assault to rise to the aggravated level. In most states, any assault causing serious physical injury to another qualifies as an aggravated assault.
State laws define the seriousness of the injury in different ways. Some states require that the injury create a risk of death. Other states elevate assaults that cause permanent injury, disfigurement, or great bodily harm to the victim.
Some states recognize multiple ways an offender can cause serious physical injury or harm to another. For example, Ohio makes it a felony assault to engage in sexual intercourse with another if you know you have the virus that causes AIDS and do not disclose your status to the other person. Washington outlaws providing poison or other harmful substances to another as a felony assault.
Several states have statutes prohibiting strangulation. Strangulation involves causing physical harm or the risk of physical harm by means of impeding a person's normal breathing or blood circulation. An offender can do this by applying pressure to the throat or neck, or by covering the victim's nose and mouth. Although the statute might not include "aggravated assault" in its title, these laws often enhance the offense to a felony crime. The degree classification and penalty available may also increase based on the level of harm or potential harm at issue.
Some violent crimes become aggravated or enhanced because of the special characteristics of the victim. This may include the offender's relationship with the victim. For example, many states enhance an assault charge when the victim is a police officer. Attacks on firefighters and teachers may also lead to a felony charge. In Texas, penalties can increase for assaults against athletes or referees at sporting events.
Typically, these enhancements apply if the victim is acting in their official capacity when assaulted. They may also apply when the offender is retaliating for some official action. For example, say an offender commits a simple assault against a law enforcement officer during an arrest. This would likely enhance the charge to a felony as the officer is on-duty. Now if the offender commits the assault against the same officer at a neighborhood barbeque, there will be no enhancement. The officer is off-duty.
Many state laws also raise the degree of crime and possible penalties for assault in other situations. Such enhancements may occur when the victims are elderly, disabled, or pregnant.
State criminal laws often treat domestic violence assault as a misdemeanor for a first-time offender. If aggravating factors are present, the domestic violence offense becomes a felony. Aggravating factors may include a prior conviction for domestic violence or the fact that a victim is pregnant at the time of the assault. States often classify domestic violence offenses under a separate statutory scheme. This sets them outside the normal assault laws.
Sexual assaults are almost always categorized separately from other assaults. Law enforcement may investigate and prosecute such cases through a special victims unit. Almost all sexual offenses get classified as felony crimes. Depending on state laws, an assault of a sexual nature may be battery, sexual assault, aggravated sexual assault, or rape.
The mental state of the perpetrator can also elevate assault charges from simple assault to aggravated assault. If the offender acted with the intent to cause severe bodily harm, a simple assault charge could become aggravated assault.
Hate for a particular group can also be a basis for enhancing assault charges. Assaults on members of certain protected classes can constitute hate crimes. Certain hate crimes may be called "ethnic intimidation" when the basis for the assault is race, color, religion, ethnicity, or national origin of the victim. Other hate crimes may be based on the sexual orientation, gender identity, or disability of the victim.
Depending on the state, reckless behavior could also constitute aggravated assault. This might occur when someone acts with reckless indifference to human life but without the specific intent to injure any particular person. If a dangerous or deadly weapon is involved, reckless conduct could become an aggravated offense even without any specific intent to injure. This reckless behavior could include throwing rocks into moving traffic or firing a pistol into the air on a city street.
The common defenses used in aggravated assault cases mirror those used in simple assault cases. An offender may claim that they acted in self-defense. When an offender claims they acted in self-defense, states often treat this as an affirmative defense that they must prove at trial. The defendant charged with assault claims that they used justifiable force in defense. They state they had a reasonable belief that the other person intended to cause them great bodily harm or death. In some states, the defense also requires proving that you had no safe retreat from the perceived threat.
When defending yourself in your home, most states recognize the "castle doctrine." This common law defense states that you can use force to defend your home or "castle." The theory is that when attacked in your home, you have no duty to retreat to safety as there is nowhere else for you to go. You can use appropriate force, including deadly force, to end the threat.
More recently, many states have expanded the "castle doctrine" by enacting "stand your ground" laws. These laws remove the duty to retreat often associated with self-defense laws.
A number of other defenses may be available in assault cases. For example, an offender can claim defense of others when they can articulate a reasonable fear that the "victim" was going to cause physical harm to another. In certain cases, an offender may claim that the "victim" consented to the assault. This may be based on words or actions exchanged at the beginning of the assault. The idea that the law should permit so-called "mutual combat" has dubious origins and may not coincide with public policy to keep the peace.
Of course, to gain a conviction, the state must prove every element of a crime beyond a reasonable doubt. Therefore, a common defense is to raise doubts as to one or more of the elements at issue.
Since aggravated assault covers such a wide range of circumstances, a detailed examination of the facts of your case is critical to evaluating legal culpability. A knowledgeable criminal defense lawyer can help. They can assess the facts of your case in light of state and local assault laws. They can discuss potential defenses and guide you toward the best outcome possible. Consider reaching out to an experienced criminal defense attorney near you.
Was this helpful?
Contact a qualified criminal lawyer to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.