In Virginia, an assault is the apprehension of a harmful or offensive contact. A Virginia assault charge can result from an attempted battery or the apprehension of a battery.
An attempted battery is an attempted harmful or offensive touching. To prove an attempted battery, the Commonwealth must prove that the offender intended a battery and performed some direct, ineffectual act towards the commission. The Commonwealth can also prove that the offender threatened a battery against the Victim and had the “apparent present ability to do so.” The threat can be actual or implied. The threat needs to be more than just words. The offender must commit some act that indicates he is trying to physically harm the victim.
A battery in Virginia is a willful, unwanted touching of another done without justification or excuse. “The least touching of another willfully or in anger” is considered a battery. The touching does not have to cause injury to be charged as a battery. This allows Virginia to charge an offender with a battery for spitting on a victim. The touching can also include causing some object to come into contact with the victim, even if the offender himself never touched the victim.
Intent is more important than the amount of force used to prosecute a battery charge. Intentional or reckless touching can be charged as a battery.
- Justification and Excuse.
- Consent. Consent is a complete defense to battery. However, if the offender exceeds the scope of consent, what was initially consensual can become unwanted and therefore a battery. Additionally, a victim cannot consent to being seriously injured. If the accused obtained consent by fraud or duress, he cannot claim consent as a defense.
- Defense of Self or Others. A person can use an equal amount of force against an aggressor to protect himself, others, or property. Excessive force (more force than is being used or threatened) can turn the offense into a battery.
- The Touching was Accidental. A battery requires an INTENTIONAL unwanted or offensive touching. A touching that occurs purely by accident, that is not reckless, is not a batter.
VIRGINIA ASSAULT AND BATTERY STATUTE
“Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, 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.”
Other Virginia Assault Charges
§18.2-57(B) is the Virginia assault charge that criminalizes assault based on the victim’s race, religion, color or national origin. This Virginia assault charge is a Class 6 felony. It is punished by at least 6 months in jail. 30 days of that sentence is a mandatory minimum.
The Statute states:
“…[I]f 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.”
§18.2-57(C) is the Virginia assault charge that prohibits assault and battery against a judge, magistrate, law enforcement officer, correctional officer, a firefighter, volunteer firefighter, or EMS personnel.
“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, 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.”
§18.2-57(D) prohibits a battery committed against a schoolteacher.
“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.”
More information on this battery charge can be found here.
§18.2-547(E) prohibits a battery against a healthcare provider.
“In addition, any perason 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 as an emergency health care provider in an emergency room of a hospital or clinic or on the premises of any 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.”