This article is written by Diksha Paliwal, a student of LLM (Constitutional Law). The article discusses the noteworthy concepts of assault in the third degree. The latter part deals with the concept described above as per various state laws in the USA. It also briefly discusses the difference between assault and battery.
It has been published by Rachit Garg.
Assault is among the most common types of criminal offences. In layman’s language, it can be understood as an act where one person intentionally or recklessly injures another person. In common parlance, assault is a violent offense in which a person is charged or accused of striking, causing wrongful physical harm to, or contacting another person.
US law has several categories of assault for which a person may be prosecuted; however, the present article will focus on the topic of “third-degree assault.”
Meaning of assault
Etymologically, the term “assault” means unlawful bodily harm inflicted upon a person by another person. To put it simply, assault can be connoted as an intentional act that puts the other person in a reasonable apprehension of harmful or offensive conduct. To constitute an assault causing physical injury, the intention to cause harmful or offensive contact with the victim is not a necessity. Also, it is an essential element of assault that the victim should have been put immediate apprehension of such harmful or offensive contact.
The term “intention” in assault signifies that the act done by the tortfeasor (a person who commits a tort) is not accidental, and the motive here is immaterial. For instance, it will not matter if the aim of the tortfeasor was just to scare the victim or if his act was just meant to be a joke. It is immaterial whether the intention of the tortfeasor concerning physical contact is harmful or offensive, only the intention for actual contact is enough.
The term “reasonable apprehension” concerning assault connotes that the victim has a reasonable belief that the act of another person will cause or lead to imminent harm or offensive contact. In cases of assault, the victim is not required to prove that he was in any kind of fear; only the fact that they were aware that such contact might occur is sufficient. In case the victim and tortfeasor do not know each other, then the law requires that in such a case a victim would have believed what a normal and sane person would have believed in such a circumstance. If they know each other, then that special knowledge will help interpret whether the victim’s apprehension is reasonable.
The term “imminent” in relation to assault means that the harmful or offensive contact must be certain or likely to occur very soon. The term “harmful or offensive” connotes an objective standard of touching that is likely to cause harm, is capable of causing harm, or is sufficient to offend a person by violating the social standards of acceptable touching. Also, an act constitutes an assault if it is not offensive, still, the perpetrator has done an act that is unusually offensive to the victim, despite the victim being well acquainted with the sensitivity towards that particular act.
Degrees of assault under US laws
Assault can be of various types or degrees under the different state laws of the US. The most common classifications are; first degree assault, second-degree assault, third-degree assault, class C assault, and class A assault.
Class C assault
Generally, class C assault is considered the lowest class of assault or misdemeanour. Under this category, a person intentionally or knowingly causes physical contact with another person, which is offensive or proactive.
Class A assault
Under this type of assault, a person intentionally, knowingly, or recklessly causes injury to another person, including the person’s spouse. The penalty for such an assault can include up to a year in prison and a fine.
A person receives a high amount of punishment for a first-degree assault. It can be described as intentionally causing or inflicting fear of serious harm or injury by using a deadly weapon.
Under this category, a person knowingly inflicts serious bodily injury or the fear of injury through a deadly weapon.
Under this category, a person uses a deadly weapon to recklessly inflict fear of serious bodily injury, or otherwise fear of causing any injury, on another person.
This article only focuses on the category of assault that falls under the category of least serious assault, i.e., third degree assault.
A person is charged with assault under the fourth degree when he or she intentionally, knowingly, or recklessly causes physical injury to another person, or a person causes physical injury to another with a dangerous weapon under criminal negligence, or if a person causes imminent fear of physical injury to another. Usually, fourth-degree assault in most state laws falls under Class A misdemeanor.
A general overview of third-degree assault under US law
Under US law, third-degree assault is considered the least serious form of assault in most jurisdictions. This category of assault requires the least amount of intentional conduct. The defendant will receive a punishment that is less severe under the third degree in comparison to other assaults.
In comparison to third-degree assault, first- and second-degree assault involve a more deliberate act, resulting in harsher penalties. The reason behind this is that, as per the general principle of criminal law, intentional acts are to be punished more severely than negligent or reckless acts. However, it is important to understand that the exact definition of different categories of assault varies according to different state laws, and some distinctions may be added or reduced in different categories of assault.
In some of states in the US, third-degree assault is considered a wobbler offence. The term “wobbler offence” denotes those crimes that can be charged as a felony or misdemeanour, as per the facts and circumstances of the case.
In most cases, it is the prosecutor who determines whether the defendant will be charged with a felony or a misdemeanour. There are certain instances where the criminal consequences of third-degree assault are much more similar to those of a misdemeanour, but the assault is treated as a felony.
Some factors that may result in a third-degree assault being charged as a felony are: repeat assault offences, which may lead to serious consequences, for instance, for repeat offenders; cases where the victim suffers a greater degree of bodily injury or harm; or if the weapon used is a very dangerous one. Also, in certain cases, if the assault is on a police officer or a government official, a minor, or a domestic partner, then such an assault is treated as a felony.
However, in some cases, the criminal charges are often reduced to fourth-degree assault after looking into the facts and circumstances of the case. Though not all jurisdictions have laws concerning wobbler offences, a defendant may file a petition before the court to reduce the charges for which he has been prosecuted from a wobbler felony to a misdemeanour.
Defences available for an assault charge
If a person is charged with third-degree assault, it is essential that the person who has been assaulted has suffered physical harm. However, the physical injury need not be severe in nature to convict someone of third-degree assault charges. Pleading before the court that the victim has not suffered any physical injury, is a good defence available to the defendant in order to get an acquittal on assault charges.
In some states of the US, like New York, an individual is permitted to use reasonable force to protect himself or any other person from imminent physical danger. Provided the court must be satisfied that you were in a reasonable apprehension that you might have gotten hurt in case the right to self-defense is not exercised by you.
A large number of assault cases are registered, where the incident arises in parties or bars, or any other public place. In such cases, the victim mistakenly identifies the wrong person, and it is often found that the victim did not recognize the person. In such cases, where even the victim is not sure about your identity, it turns out to be a good defence point.
Consequences of third-degree assault conviction
When talking about criminal consequences, the first consequence that a person faces after conviction on third-degree assault charges is imprisonment, which may be up to a period of 1 year. However, this period of imprisonment may extend up to 18 months in cases where the victim suffers severe injuries.
In some cases where the accused is charged with assault in the third degree because it is a misdemeanour, the judge, if he deems fit, may just order the accused to spend a certain amount of time on probation rather than giving him the penalty of imprisonment. Some rules that a person sent on probation must follow are as follows:
- He must not commit a crime,
- He must not leave the state he resides without getting prior permission from the court,
- He must not get in touch with other criminals, abide by the laws of the state,
- He must perform community service, refrain from consuming alcohol, etc.
Apart from the term of imprisonment as prescribed by the statute, the person convicted of assault is also required to pay a certain amount of fine as ordered by the court, which may extend up to $1000. In addition, the accused may be asked to pay restitution to the victim in excess of $15,000, or in some severe cases, the amount may be increased if the judge deems it appropriate. It all depends on the facts and circumstances of the case. In the event of failure to pay the fine or the restitution charges as ordered by the court, the person may be charged with a misdemeanour and can also be sent to prison. The court may also order to deduct the salary or wages, in the event of non-compliance with its order. However, the court may reduce the amount of the fine or restitution, after considering a person’s financial condition.
The court may pass an order of protection to protect the victim from the accused. The prosecutor may plead for the grant of such protection to keep the victim safe. In most cases of third-degree assault charges in domestic violence incidents, the court issues an order of protection to keep the victim safe from future mishaps.
Assault in the third degree: a state-wise description
Third-degree assault in Nebraska
In Nebraska, assault in the third degree is defined under Sections 28-310 of the Nebraska Revised Statutes as an act wherein one person intentionally, knowingly, or recklessly causes bodily harm to another or menacingly threatens another. As per the facts and circumstances of the case, this can be categorized as a Class I or II misdemeanour. In third-degree assault, no proof of serious bodily injury is required; proving bodily harm is sufficient, which can be proved from the evidence that the victim was intentionally struck by the defendant.
In Nebraska, generally, third-degree assault is treated as a Class I misdemeanor. The punishment for third degree ranges from zero to one year in jail or a fine up to $1,000, or both at the maximum. In Nebraska, there is no minimum sentence, and the punishment can fall between these two extremes at the judge’s discretion. In the case of a Class II misdemeanour, the penalty can range from six months, a one thousand dollar fine, or both. Also, in some instances, the minimum punishment is sometimes no punishment at all or just a meagre fine. Generally, the penalty is carried out in the county jail for third-degree assault, except for some selected instances in which the sentence would be carried out under the jurisdiction of correctional services. For example, if a one-year sentence for a Class I misdemeanour is imposed and the sentence is to be served concurrently with a felony conviction.
In Colorado, third-degree assault is discussed under Section 18-3-204 of the Colorado Revised Statute and is described as intentionally, knowingly, or recklessly causing bodily harm or injury to another person. Such an offence under Colorado law is a Class I misdemeanor. The offender can be punished with up to 18 months in jail, a fine of $10,000, or both. The defendant can seek self-defence, defence of others, lack of necessary intent, and false accusations as a defense to protect the charges made against him or her.
In Alabama, a third-degree assault is defined in Section 13A-6-22(a)(1) of Alabama’s Code of 1975. third degree falls under a Class I misdemeanor. A person charged with third-degree assault may face harsh penalties ranging from large fines to lengthy incarceration. However, the charges are not that serious for third-degree assault in Alabama. Assault in the third degree is not prosecuted as felony assault, as is the case with second-degree assault. A person will be prosecuted for third-degree assault when he intends to and causes bodily injury to another, recklessly causes physical injury to another, causes physical injury to another in negligence through a deadly weapon, or when someone prevents or intends to prevent a peace officer from performing his duty and causes injury to any person.
A third-degree assault in Alabama includes the occurrence of a physical injury or the intention of a person to cause injury or harm through reckless or negligent conduct. Third-degree assault can result in a $500 fine and up to 180 days in jail, or both, depending on the circumstances. This is the punishment under the district court system; however, in the state court system, the same offence can result in a $6,000 fine and up to a year in jail.
In Washington, the Revised Code of Washington’s Section 9A.36.031 states that a person may be charged with a third-degree assault if he is accused of one of the following conditions, provided the circumstances do not amount to second or first-degree assault. Any activity of assault on a school bus driver, assault on a driver of public transport, causing bodily harm to another with a weapon with criminal negligence, assaulting a firefighter, assaulting a police officer, assaulting a nurse, physician, or health care provider, or a person located in a courtroom, jury room, judge’s chamber, etc., assaulting a peace officer with a projectile stun gun, and with criminal negligence, causing bodily harm accompanied by pain that extends for a period sufficient to cause considerable suffering. The above-mentioned acts are generally classified as 4th-degree assaults or Class C felonies; however, when committed against the special above-mentioned category of people, they are classified as 3rd-degree assaults.
For first-time offenders, assault in the third degree is punishable by up to 1–3 months in jail or a fine, which may extend up to $20,000, or both. Repeat offenders, on the other hand, face prison sentences of up to five years.
Like most jurisdictions, New York also categorizes third-degree assault as the least severe offence. It defines third-degree assault under Section 120.00 of the New York Penal Code. In such an assault, injuries are relatively minor. For example, if someone punches another person in the eye, resulting in a black eye, or if someone pushes another person, resulting in a minor sprain or muscle injury, he or she is likely to be charged with third degree assault. In New York, the longest period of punishment for third-degree assault can be one year of imprisonment with or without a fine. Third-degree assault in New York is a class A misdemeanor.
Difference between assault and battery
People often confuse assault and battery as the same offences. However, the two things differ from each other. The battery is considered to be a more violent crime than assault. In a battery, a person touches another person in a harmful or offensive way, thereby causing him harm or injury. However, even in the offence of battery, the severity of the crime depends upon the injury or harm caused by the act of battery. In the offence of battery, fines and jail time are the common penalties given by the court; however, the period of jail and the amount of fine imposed are much larger as compared to assault. An assault happens when a person engages in conduct that causes harm or injury, like a threat, but a battery occurs when a person causes harm or injury to another.
Legal help in the event of conviction under third-degree assault
As previously stated, assault charges can be filed against anyone who attempts or causes physical harm to another person. In such an event, it is important that a person understands the consequences that he or she might face, once he or she gets charged with assault. Seeking legal help is very essential, because the conviction may have some really serious consequences, be it long-term or short-term, in the life of the person charged with assault. Opting for a lawyer may help the accused person with the consequences of the charges, and help him chalk out a plan that may either help him get free from the charges or if not, it might at least help him in getting a shorter penalty. The lawyer may suggest some good points of defence, which may get the accused leniency from the court. The lawyer, with his experience, evaluates the entire incident from a legal perspective and then frames the points that may be used in defence to protect the client from the charges made against him.
In almost all jurisdictions under US law, the intent to cause bodily harm or injury is required to constitute a third-degree assault. In general, it is regarded as the least serious assault offence. Some general defences that a person can plead before the court in cases of third-degree assault are self-defence or that the act was committed due to negligence, lack of intention, etc. Apart from the short-term imprisonment and fine imposed, a person facing assault charges can face other consequences as well, like the presence of an assault conviction in his criminal record, the impact on employment, housing, credit opportunities, etc. Offences like domestic violence and menacing are two of the most common offences that come along with charges of third-degree assault.
Frequently asked questions (FAQs)
What are the most common forms of third-degree assault?
Assaulting a person attending a court hearing or assaulting a nurse, public official, police officer, or minority group are some of the most common assaults that are frequently reported in the US.
Whether third-degree assault is excused under a mistake of fact or not?
Generally, in a third-degree assault, the only requirement is general intent, i.e., the intention of performing physical contact or causing bodily harm or injury. However, it is important to note that a mistake of fact, despite being reasonable, does not excuse the act done by the offender, and he is hence charged with the offence of assault in the third degree.
- https://sopinskilaw.com/blog/what-is-third degree-assault-in-nebraska-a-simple-guide/
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