Assault and Battery and Domestic Violence Attorney

Assault and Battery & Domestic Violence Criminal Defense Lawyer

fairfax criminal lawyerThis page covers Assault and Assault and Battery, not on a family or household member. For our Virginia Domestic Violence Laws page where we cover Assault against a family or household member (18.2-57.2) in much more detail than on this page, please go here.

Note and Disclaimer: nothing contained on this page is to be considered legal advice. It is for informational purposes only. While we strive to update our website when laws change, we cannot guarantee every portion of every page, including this page, to be 100% updated at any given time. Please do not rely on any internet source, even an attorney website.

Quick Assault and Battery Page Navigation

Assault and Battery Criminal Defense Lawyer
Assault and Battery Attorney in Virginia
Assault vs Battery
What is Assault and Battery?
Assault Definition
What is Battery?
Penalties and Consequences: Assault and Battery
When Assault and Battery is Even More Serious
Based on Race, Religion, Skin Color, or National Origin
Assaulting a Police Officer
Against a Teachers, Principal, and other Educators
Against a “Health Care Provider”
Domestic Assault and Battery (Domestic Violence)
Which Court?
Who is a “Family or Household Member?”
Penalties: Against “Family or Household Member”
Emergency Protective Order Requirement
How a First Assault and Battery Offense Can Get Dismissed
Non-Citizens: Deportation Risk
Inability to Purchase a Firearm
Active Duty Members: Mandatory Reporting
Assault and Battery: Gay and Lesbian Relationships
Other Assault Crimes
Assault by Mob
Sexual Battery vs “Common Law” Battery
Assault and Battery Defenses
Certain Exceptions Applicable to School Employees
Frequently Asked Questions
Assault and Battery Lawyer and Domestic Violence Attorney

Assault and Battery

Fairfax criminal lawyerIf charged in Northern Virginia, our Fairfax criminal lawyer can: explain the current status of the laws related to your case; explain your case’s strengths, weaknesses, and potential defenses; and inform you what it will cost for representation in the form of a flat-fee as opposed to sometimes uncertain hourly billing structure some attorneys require. Speak with a Virginia criminal defense attorney in-person by calling our toll-free number, 1 888-695-6565, to schedule a free initial consultation.

We serve many areas in Northern Virginia, including (but not limited to): Fairfax, Fairfax County, Arlington County, Spotsylvania County, Leesburg, South Riding, Manassas, Prince William County, McLean, Reston, Burke, Vienna, Springfield, Lorton, Loudoun County, Chantilly, South Hill, Haymarket, Stafford County, Woodbridge, Alexandria, Warrenton, Dale City, Quantico, and others.

Assault and Battery Charges – Virginia Criminal Lawyer

“Assault and Battery” is a serious offense, regardless of the alleged victim’s relationship to the charged individual or their status. If you have been accused of, or charged with assault and battery in Northern Virginia, then we strongly encourage you to talk to our professional and zealous advocate: our Fairfax criminal lawyer.  While all criminal charges need to be taken seriously, there are different laws and subsections of laws applicable to some assault and battery cases, depending on the details of the case.

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The degree of punishment you may be facing if an assault and battery charge depends on various factors, which we will review with you upon an initial consultation. For now, here are just a few of these factors:

  • the relationship between the accused person and the alleged victim;
  • whether the accused person and alleged victim reside together;
  • the time since an accused person and alleged victim resided together;
  • the underlying motivation behind the alleged action;
  • the location of the alleged act; and,
  • other numerous other potential circumstances surrounding the case.

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fairfax criminal defense attorneyOn this page, we discuss various portions of how Virginia law punishes, views, and treats certain assault and battery charges, including: “simple assault;” “assault and battery,” “domestic assault” (A.K.A. “domestic violence”); assault against a police officer; assault and battery against, or committed by, a teacher or other member of school-staff; mob assault; parental discipline-related accusations; and more.

Bookmark our website at VincenzesLaw.com or FairfaxCountyCriminalDefense.com for the latest articles and pages by our Virginia criminal law legal team and Fairfax criminal lawyer. Remember: we serve most Northern Virginia jurisdictions, not solely Fairfax County.

We offer a free consultation, either in-person, over the phone, or online…and we do not  impose a strict time limit. At the conclusion of our discussion, we will quote you (a flat-fee), as we do not offer hourly rates unless a person makes a specific request to pay by the hour. As a Fairfax criminal law firm that serves most of Northern Virginia, our Fairfax criminal defense lawyer has discovered that most people do tend to strongly prefer a flat-fee payment structure. The reason is simple: unlike hourly billing, you know what the total legal cost would be before deciding to hire us…before ever spending a dime. We do this so that our potential clients and clients do not have to wonder or estimate how many hours their case will require. Similarly, if you take advantage of our free consultation, you will know exactly what your total cost would be. We are happy to always explain what your best defense may be based on our professional analysis of your facts. Call your local Fairfax criminal lawyer today, toll free:

Land Lines (dial): 1 (888)-695-6565
Mobile Phones (tap): 888.695.6565

If you do not wish to call, feel free to send us a message. If you are facing a criminal charge in Northern Virginia, do not delay. The more time we have to prepare your defense, the better. But if you have waited a long time and your court date is right around the corner, do not let that stop you from reaching out to us. We are still happy to help you if we are able.

Assault vs Battery

Many persons faced with a simple assault or assault and battery charge want to know, “what is the difference between an assault and a battery?” In a personal injury case (sometimes called a “tort” case), the distinction may differ from the discussion on this page. Here, we discuss assault and battery in terms of the criminal law in Virginia on this site. You may still reach out to us if you have a civil action or personal injury matter.

What is Assault and Battery?

“An assault and battery is an unlawful touching of another. It is not necessary that the touching result in injury to the person. Whether a touching is a battery depends on the intent of the actor, not on the force applied.” ii

Assault Definition

assault definitionIn Virginia, the criminal definition of assault is perhaps articulated in the most straightforward way by the court: One such definition found in Virginia case law can be read just below, under the headline, “Definition of Assault:”

Definition of Assault

“an attempt or offer, with force and violence, to do some bodily hurt to another . . . by means calculated to produce the end if carried into execution; as . . . by leveling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability of using actual violence against the person of another.” iii

To distinguish the term “battery” from “assault,” you may wish to think of it this way: a “battery” technically refers to the actual contact and the “assault” refers to the intention to cause the battery, plus some act in furtherance of such intent.

What is a Battery?

what is batteryA battery in Virginia has been described by the courts as:

“an un-permitted touching done in a rude or angry manner, with no justification or excuse.” ii

Note: the alleged victim does not have to sustain a physical injury for the touching to be a battery. It just must be unwanted. There are additional nuances which may apply in some cases, but for purposes of brevity, when you discuss your case with our Fairfax criminal lawyer, he will mention them if relevant to your case.

Penalties and Consequences: Assault and Battery

Simple Assault and Assault and Battery

A simple assault or an assault and battery charge under Virginia Code § 18.2-57 is considered, at minimum, a Class 1 misdemeanor offense. Check your summons (the yellow sheet of paper) describing your charge. The police officer should have put the Virginia Code number on the summons. If he or she did not, please call us for clarification. If charged under 18.2-57, and if your violation is not a felony, then as a Class 1 misdemeanor, the judge is authorized to sentence a convicted person to a maximum of:

  • one year in jail, and/or
  • a $2,500 fine.

However, in the case of a simple assault where the victim is alleged to have been purposefully selected based on race, religion, skin color, or nation of origin, then there is a mandatory minimum active jail term for:

  • active jail term of 30 days, and
  • a suspended jail sentence of at least six months.

Keep in mind, the judge can still sentence a person to a much longer time than 30 days active jail time or six months suspended, as was previously discussed above. We explain in the following section that this allegation is a much more serious offense, because it is a Class 6 felony (up to five years in prison).

When Assault and Battery is Even More Serious

Assault and Battery: Based on Race, Religion, Skin Color, or National Origin

In the case of an assault and battery based on a person’s race, religion, skin color, or national origin, the crime is elevated from a Class 1 misdemeanor to a Class 6 felony. It should be noted that in Virginia a Class 6 felony is punishable by:

  • Imprisonment up to five years; and/or
  • a fine of up to $2,500.

Assault and Battery Against Police and Certain Law and Safety Officials

An assault or assault and battery by a person who knows (or has reason to know) the alleged victim is a:

  • judge;
  • magistrate;
  • law enforcement officer;
  • correctional officer; or
  • one of the other persons described by the Code; then,

the offense is a Class 6 felony and not a Class 1 misdemeanor. In such a case, the judge has no choice but to sentence the convicted person to a mandatory minimum jail sentence of:

  • 6 months (active jail time–will not be suspended).

If you are unsure whether or not the alleged victim in your case falls in this category, or if the accusation or charge is a felony or misdemeanor, please speak with a Virginia criminal defense attorney or a local Fairfax criminal lawyer. Even if you are certain your offense is a Class 1 misdemeanor, we strongly suggest you hire an attorney, because if found guilty, you do face jail time and thousands of dollars in fines either way.

The status of “judge” does not only refer to the judge of a typical Circuit or District Court. It also applies to members of the State Corporation Commission and Virginia Workers’ Compensation Commission.

Likewise, the term “law enforcement officer” may refer to an employee of a police department or sheriff’s office, the Department of Alcoholic Beverage Control, Department of Motor Vehicles, jail officers, Metropolitan Washington Airport-appointed officers, fire marshals, as well as members of the Department of Conservation and Recreation. Our Fairfax criminal defense attorney can explain any potential errors made by an arresting officer in this regard.

Against Teachers, Principals, and other Educators

If you are charged with an assault and battery against a teacher or other school employee, including but not limited to bus drivers and principals, regardless of whether the alleged victim is a private or public worker, there are differences compared to an assault and battery against someone not listed in this subsection of the relevant Virginia Assault and Battery law. However, for this subsection of the law to apply, the alleged victim must have been acting pursuant to their duties at the time of the alleged battery. Note: this paragraph does not refer to teachers and school employees who are themselves charged with assault or assault and battery. If you are a teacher or other school employee charged with an assault and battery against a student, see whether an exception applies to exempt you from criminal liability further down this page.

The difference:  if convicted, there is a mandatory sentence of 15 days in jail, and two of those days must be served by active confinement. If you are faced with an accusation, investigation, or charge against a school staff-member or are not sure, or if charged with any form of assault and battery in Northern Virginia, we strongly suggest you call a Virginia criminal defense attorney or our local Fairfax criminal lawyer who serves most of Northern Virginia as soon as possible.

If a firearm or weapon is used in a battery against an educator mentioned above:

If a person is convicted of committing a battery using a firearm or weapon against a person listed in the Virginia Assault and Battery law above, then there is a mandatory minimum jail sentence of six months (an active, not suspended sentence).

Against a “Health Care Provider”

Similar to the teaching and education professionals in the previous section, if your charge involves an alleged victim in the health care industry, and you are accused of having been aware or having had a reason to know the alleged victim was or is a health care provider, in addition to the fact that they were engaged in their job-related duties (such as a nurse working in a hospital emergency room or other treatment facility), then the sentence must include at least 15 days of jail, with two mandatory days of active confinement. For an analysis and consultation, call or message us so our Fairfax criminal defense lawyer can assess your case free of charge.

Domestic Assault and Battery (Domestic Violence)

domestic violence lawyer

It is an unfortunate reality for many families that in Virginia, when the Commonwealth Attorney makes the decision to prosecute an Assault and Battery or Domestic Violence charge, the complaining witness (the alleged victim) has no authority when it comes to whether or not the case goes forward on the day of trial. Why is this sometimes a problem? Surely, many times the case should go forward when a person is in danger. However, oftentimes family disputes occur, people make-up, and move on. Even when the “victim” is a spouse, child, or other loved-one, and he or she has either realized that they have made a mistake by contacting law enforcement, the court does not have to terminate the prosecution or prevent the Commonwealth Attorney from proceeding with the charge, and many times it will not.

Our Virginia domestic violence lawyer and Fairfax-based criminal law attorney has seen cases where no person in court (aside from the Commonwealth prosecutor, that is) desires for the case to go forward. Due to the potential significant consequences of an assault and battery (or domestic violence) conviction–including but not limited to deportation, child custody issues, monetary fines, jail time, firearm restrictions, protective orders, probation, and more), having a thoughtful and skilled criminal defense lawyer on your side is of paramount importance. You may want to schedule a free consultation with our domestic violence attorney by calling us if you are faced with a charge of a domestic violence.

Assault and Battery Against a Family or Household Member

In Virginia, a normal assault and battery charge differs from a charge stemming from a complaint made by a “family or household member.” One of the few similarities is that the same potential defenses exist (defenses discussed further down this page). The differences can be difficult to understand and are best explained by your local Fairfax criminal lawyer. Some of these differences are discussed on this page, and relate to the following, among others:

  • the court where the case is heard or tried
  • repercussions
  • penalties
  • obligations
  • protective orders
  • the ability to purchase a firearm

District Court or Juvenile and Domestic Relations Court?

In Virginia, an assault and battery criminal charge may be within the jurisdiction of the adult General District Court, Circuit Court, or Juvenile and Domestic Relations Court. The Juvenile and Domestic Relations Court is typically the court for a case of domestic violence, if it involves a charge made by a person against another who is considered a “family or household member.” This term, “family or household member,” is more nuanced than one might consider upon a first impression and is discussed in the section below. A Virginia or local Fairfax criminal law attorney can explain how your unique case may be interpreted.

Who is Considered to be a “Family or Household Member?”

In Virginia, a “family or household member” is defined by law.

[pulsehover_text preset_name="sharebuttons"]Sometimes it matters whether or not an alleged victim and defendant reside together. When it comes to other alleged victims and defendants, however, whether they live together does not matter.  It may help you understand these differences by considering these two main categories of possible “family or household members:”

  1. persons who must reside with the defendant at the time of the offense, and;
  2. persons who do not have to necessarily reside with the defendant at the time of the offense.[/pulsehover_text]

1. When an alleged victim must live/reside with the defendant to be considered a “family or household member”:

  • “In-laws,” including: a defendant’s mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in–law, and sister-in-law.
  • Any person who cohabits with the defendant.
  • Children of a person who cohabits or cohabited with the defendant within the previous 12 months, who is not the child of the defendant.

2. When an alleged victim’s residence does not matter:

  • Spouse
  • Former spouse
  • Defendant’s children, stepchildren, or grandchildren
  • Defendant’s siblings, including half-brothers and half-sisters
  • Defendant’s parents or stepparents
  • Defendant’s grandparents
  • The mother or father of a child in common with the defendant (regardless of whether or not they were married in the past or resided together at any point in time)
  • Any person who cohabited within the previous one-year (12 months) with the defendant

Penalties for an Assault and Battery Against a “Family or Household Member”

An assault and battery charge against a family or household member may be a:

  • Class 1 misdemeanor or
  • a Class 6 felony.

We think it is important for those charged with any criminal offense to speak with a criminal defense attorney, because in Virginia, a Class 1 misdemeanor can be severe.

It is a Class 6 felony if the accused party has been convicted within the past 20 years of any combination of two of the following offenses against a family or household member, all of which must have occurred on separate dates:

  • assault and battery
  • malicious wounding
  • aggravated malicious wounding
  • malicious bodily injury by means of a substance ; or
  • a crime in another jurisdiction that contains the same elements of any of the offenses above

Emergency Protective Order Required?

Unless the defendant is under the age of 18 (a minor), when a warrant is issued for an alleged violation of an assault and battery against a family or household member, an emergency protective order must also be issued. We represent people accused of crimes in Northern Virginia, and our Fairfax criminal lawyer is willing to meet with you at no cost, and no obligation whatsoever. We can answer questions you have about any protective order that may have been issued against you recently or that may be issued against you in the future based upon a charge or accusation.

A Case Can be Dismissed in Some Instances

Sometimes it is possible for a person’s assault and battery charge against a family or household member (domestic violence) to be dismissed after it has been continued for two years. That said, however, the defendant will still be placed on probation. The case may be dismissed only if:

  • it is a first offense
  • the defendant is an adult; and
  • the person completes an anger management course or course(s) ordered by the court.

Additionally, other stipulations may apply, including good behavior for at least two years.

Note: Deportation Consequences

Assault of a family member will result in deportation of a non-U.S. citizen, if the facts are such that they are deemed sufficient to support a finding of guilt. This is true even if the case is continued to be dismissed as outlined above.

Firearm Limitation

Another consequence to a domestic violence charge is, as a result of the protective order being issued, the inability to buy a firearm (see Virginia Code § 18.2-308.1:4).

Requirement for Active Duty Members of the U.S. Armed Forces

If found guilty of an assault and battery against a family or household member, then the convicted person is required to report the conviction to family advocacy representatives of the U.S. Armed Forces.

Regarding Same-Sex Couples

In Virginia, is a same-sex couple considered to be a “family or household member?”

Cohabitation used to be a term related to a husband and wife relationship, not same-sex couples.  However, in recent years, Virginia has shifted in some respects.

Following an amendment banning same-sex marriages in Virginia, the question arose,

“[Does] the marriage amendment [related to the banning of same-sex marriage] support a defense to the criminal charge of family assault and battery, pursuant to Va. Code § 18.2-57.2.”

The Attorney General answered this question as follows:

“Passage of the amendment . . . would not prevent prosecution of an individual cohabiting in a same-sex or other unmarried relationship for assault and battery of the other individual pursuant to § 18.2-57.2.” -2006 Va. AG 55 (September 14, 2006).

In short, the term “cohabitation” is evaluated using a “totality of the circumstances” analysis by the court, taking into consideration whether there is or was shared familial or financial responsibilities, and “consortium.” To gain an understanding of whether or not the alleged victim in your case is considered a family or household member, we suggest you speak to our Fairfax criminal lawyer and meet in-person at our Virginia criminal defense firm location.

Other Forms of Assault or Assault and Battery

Assault by Mob

In Virginia, you can be found guilty of a simple assault or assault and battery if you were part of a “mob.” This is true even there is no testimony that you actually hit, struck, or touched the alleged victim. xi If you have been charged with an assault or assault and battery because you are alleged to have been a part of a mob, the penalty may be a Class 1 misdemeanor at the lowest end of the spectrum. If the facts of your case are alleged to have occurred in the Northern Virginia area, then you may want to seriously consider calling our strategically-minded, friendly, and passionate Fairfax criminal law attorney like ours, for a free case evaluation and consultation.

Sexual Battery v. “Common Law Battery”

We understand the highly sensitive nature of all sex-related offenses, from both the accused person’s viewpoint and the hypothetical victim’s perspective. Therefore, we choose to keep our online discussion to a minimum when it comes to sexual crimes. If charged with this crime or under investigation, please call our law offices to speak with a Fairfax criminal lawyer. We do not judge, we simply protect rights of those facing the criminal justice system.

Generally speaking, battery (non-sexual in nature) requires a showing of a “non-consensual touching.” However, for the Commonwealth to convict someone of a sexual battery, the prosecution must prove that the area of the physical contact was an “intimate part,” or that the alleged victim was forced to touch an “intimate part,” and also that the accused person had a specific sexual intention. Furthermore, the acts must have been against the victim’s will.

Fairfax Criminal Lawyer: Assault and Battery Defenses

Defense to Assault and Battery – Burden of Proof and Mental State Requirement

If you have been charged with any crime, then the prosecution must prove the elements of the offense. Most crimes require an intent on the part of the defendant for a finding of guilt. If some factual circumstance(s) exists to negate the state of mind requirement for such an offense, then the court should rule, “not guilty.” Here is an example, provided by our Fairfax criminal defense lawyer:

[pulsehover_text preset_name="sharebuttons"]“One classic example to illustrate this point is a crowded bus. If the bus suddenly swerves and a person falls on top of another person, even though that person who was touched may not have consented to that touching, and even he or she was injured as a result, the person who fell as a result of the serving bus would not be deemed to have possessed the required state of mind – or intention – to commit an assault and battery offense.”[/pulsehover_text]

Similarly, and particularly applicable to the general assault and battery law discussed on this page (as between non family or household members), an offense may be more severely punished if certain facts exist, for example: intentionally selecting a person based on his or her race increases the mandatory term of confinement for sentencing purposes in Virginia. But if you did not intentionally select the alleged victim based on race (or one of the other factors), then you should not be punished under the more severe sentencing standards. For more clarification with regard to whether or not your state of mind or intent is important to bring up at trial given your specific case, ask a legal professional who practices criminal law. If your case is to be heard in a court in the general Northern Virginia area, consider calling or messaging our attentive and zealous Fairfax criminal lawyer.

Excuses and Justifications – Assault and Battery Defenses

Sometimes, a person charged with an assault and battery offense has a valid excuse or justification. These are two fundamentally different terms.

Generally speaking, an excuse is “personal to the actor.” In other words, whether or not an action should be excused depends upon the charged person’s:

  • condition, and/or
  • status

A valid legal excuse results in that individual to avoiding culpability for what would normally be a criminal offense. A psychological disorder is one prime example of an “excuse.” As a result of the personal nature of an excuse, excuses are non-delegable  to an accomplice (in other words, if two or more people are co-defendants, one may excused but not necessarily the other). iv

On the other hand, a legal justification does infer a specific status or condition inherently “personal” to the actor, or charged person. A justification is usually a type of defense that anyone could use, regardless of their status or condition. An example is self-defense. Whether or not your facts give rise to a possible defense based on a legal excuse or justification, our Fairfax criminal lawyer will need to review the facts of your case. We offer a no-cost initial consultation, as well as generous discounts and flat-fees.

“Excuse” Defenses to Assault and Battery: Explained by a Fairfax Criminal Lawyer

Excuse defenses relate to the defendant’s state of mind. Generally, an excuse is an action that the criminal justice system recognizes as harmful but forgivable.

Three types of excuses discussed on this page are:

  • Duress;
  • Entrapment; and
  • Infancy, Insanity, etc.

Duress Excuse 

Duress is an excuse that applies in limited, specific circumstances. A defendant must be able to show his or her criminal actions were the

“product of threats inducing a reasonable fear of immediate death or serious bodily injury.” v

If you believe your assault and battery charge should be excused by duress, then your local Fairfax criminal defense attorney serving the counties, cities, and towns of Northern Virginia may be able to explain why you may or may not be correct.

Entrapment Excuse

The term, “entrapment,” is familiar to many non-lawyers because it gets used quite frequently in television shows and movies…but the way it is used in stories or fictional dramatic productions is often legally inaccurate.

Entrapment is a defense and excuse to a crime if the crime charged was brought about by:

  • planning and conception by a law enforcement officer, and
  • the person who is charged would not have otherwise committed the crime, absent: “trickery, persuasion, or fraud” on the part of the officer.vi

Entrapment is not always a viable defense/excuse, for example, if the person charged is “predisposed.” If you are unsure whether you were “predisposed” or are curious as to whether or not the facts surrounding your case, arrest, or charge may lead to a valid entrapment claim, our Fairfax criminal law attorney can explain why you may or may not be right.

Infancy and Insanity Excuse

In the United States of America, most crimes give rise to criminal liability only if the actor possessed a specific mental state of mind. Depending on the crime, the state of mind requirement may be that the offense was committed  intentionally, knowingly, recklessly, or negligently. Some crimes are “strict liability” offenses (meaning there is no mental state requirement), but not many.

Consider the mental ability and comprehension level of a typical infant. Even if an infant does something that would be criminal, it would not be “socially just” for society to punish that infant, because he/she could not be expected to have any conception as to what it is they did. In a similar fashion, those deemed legally insane are not considered justified in committing a crime, but they may be excused.

“Justifications” Defenses: Explained by a Fairfax Criminal Defense Attorney

Justifications are sometimes differentiated from excuses in that they are often commendable, even though the act brings about harm. The justice system views justification defenses as important to society based upon the social value of the act (and the value in allowing members of society to be able to take such actions). There are, however, limitations to justification-defenses.

Self-Defense as a Justification

Self-defense is what is called an “affirmative defense.” In essence, the defendant is admitting to the criminal conduct, but saying he or she was justified. When it comes to self-defense, any force used must be limited to only what is necessary to avoid or defend against the threat.

The threat does not necessarily have to be real. The law looks at whether a “reasonable person in the defendant’s position” would identify something as a threat. For example, a realistic but fake gun could very well lead a reasonable person (absent knowledge of the gun being fake), to believe it to be a real threat.

If your assault and battery case is based upon facts in Northern Virginia and you are required to appear in a court in Northern Virginia, talk to our local Fairfax criminal lawyer. He will explain whether or not any defense(s) may exist after he analyzes the facts of your case. If self-defense is a viable option, then you will need to work with your Virginia criminal defense lawyer to offer evidence in court to raise a reasonable doubt about your guilt. In Virginia, whether or not the facts surrounding your case are adequate is a question of fact for the judge or jury. viii

Requirement: Defendant Without Fault

Self-defense will not be a good defense to an assault and battery charge if too much force was used. Also, you must have reasonably been in fear of serious bodily harm. If you are charged with assault and battery stemming from a situation where you were in fear for your life or thought you would be seriously harmed unless you took a defensive action, then self-defense may be an affirmative defense that your local Fairfax criminal lawyer mentions during your initial consultation.

Resisting Unlawful Arrest

In Virginia, you have a right to resist an unlawful arrest made with unlawful force. ix Therefore, it is possible for an assault and battery charge resulting from a resistance to an unlawful arrest to be defended based upon this right. If your case involves an unlawful arrest, be sure to let your Fairfax criminal defense firm know when you meet to discuss your case.

Parental Discipline

Parents have been disciplining children since the beginning of mankind. But this does not mean there are no limits. It is not an assault and battery if a parent punishes their child with moderation, but it must be for the welfare of the child. Exceeding due moderation can lead to a criminal charge. x

Non-Parents Disciplining Child

Here is a good question: if a non-parent disciplines a child, does he or she have the same legal protection as the parent (assuming due moderation is used, and it is for the welfare of the child)? If the person is standing “in loco parentis,” then the answer is yes. The term, “in loco parentis” is Latin for, “in the place of a parent,” and refers to the legal responsibility of a person or organization.

Exception for Education Professionals Maintaining Safety and Keeping Order

If the accused individual was acting pursuant to his or her official duties, and if the alleged assault or assault and battery meets specific requirements, then such an action may not be considered unlawful. For example, any of the following actions may not be considered violations of the Assault and Battery law:

  • Minor or incidental contact for purposes of maintaining order/control
  • Reasonable force, if necessary to:
    • end a fight or disturbance
    • remove a student from a situation that poses a threat of injury to others or damage to property
    • stop a student from self-harm
    • defend ones’ self or others
    • obtain a weapon, dangerous object, controlled substance, or drug paraphernalia

Education-Related Employees Excepted

Who does the exception cover?

The exceptions listed above for assault and battery specifically apply to:

  • Teachers
  • Teacher’s aides
  • Principals
  • Assistant principals
  • Guidance counselors
  • School security officers
  • School bus drivers, and
  • School bus aides

If you have been charged with, or accused of committing an assault or assault and battery and work in the education field, then ask your criminal defense attorney about whether or not this law applies to you and your case. If in Northern Virginia, our local Fairfax criminal lawyer will meet with you to discuss the case for free.

Potential Case Dismissal: Alleged victim/person injured receives “satisfaction”

If the alleged victim/person injured appears in court and acknowledges in writing that he or she has received “satisfaction” for the injury, then in some cases the court may (in its’ discretion), dismiss the prosecution. However, the court may require the defendant to pay costs the Commonwealth (or police officers) accrued, if any. This applies to misdemeanor assault and battery charges, but not if:

  • The alleged offense was committed by a law enforcement officer.
  • The alleged offense was committed upon a law enforcement officer.
  • The alleged offense was committed “riotously”.
  • The alleged offense was committed against a family member of person living in the same home.
  • The alleged offense involves the intent to commit a felony.

Assault and Battery Frequently Asked Questions

Does the Victim Have to be Aware or Fearful for an Act to be Considered an Assault?

In Virginia, an assault charge may arise even if the alleged victim is not aware of an action intended to frighten or inflict harm. As long as the accused person is found to have had the “specific intent” to commit a battery, then that intention plus an action “in furtherance” of the intention is considered assault.

Can the Police Make a Warrantless Arrest Based on a Person’s Statement?

Yes, if the officer has probable cause to believe, based on an eyewitness’ statement, that the accused committed an assault and battery. However, if charged with assault and battery in Northern Virginia, a Fairfax criminal lawyer and assault and battery attorney may be able to determine whether such probable cause did in fact exist. If it did not, then the arrest may be invalid and illegal.

Is a Verbal Threat Considered an Assault?

No. A purely verbal threat is not assault. Assault requires an “overt physical act.”

Is it “Assault and Battery” if there was no Physical Contact?

Possibly. There is a specific law prohibiting the use of a laser or laser pointers on law enforcement officers (it is a Class 2 misdemeanor). Another example of what may be considered an assault and battery could potentially be the act of throwing the contents of a cup or other container on to another person, or other similar action(s).

Assault and Battery Lawyer

fairfax criminal defense attorneyAt Vincenzes Law, PLLC, we represent clients accused of or charged with many different crimes, including assault and battery and domestic violence. We offer flat-fees for representation, because we believe flat-fees provide for the most transparent and certain method with regards to determining what the overall legal costs will be.

fairfax criminal lawyer

 To schedule a free consultation with our Domestic Assault and Assault and Battery criminal attorney in Fairfax, please call our office toll free at 1 888-695-6565. We serve many areas in Northern Virginia, including (but not limited to):

          • Fairfax County
          • Arlington County
          • Spotsylvania County
          • Stafford County
          • Loudoun County
          • Prince William County
          • Great Falls
          • Leesburg
          • South Riding
          • Manassas
          • McLean
          • Reston
          • Burke
          • Vienna
          • Springfield
          • Lorton
          • Chantilly
          • South Hill
          • Haymarket
          • Woodbridge
          • Falls Church
          • City of Alexandria
          • and others.

Violent Crimes Potentially Related to Assault and Battery

Other serious offenses related to acts of violence and/or Assault and Battery include the following:

  • Assault on a Law Enforcement Officer and Mob Assault
  • Unlawful Wounding, Malicious Wounding, Aggravated Malicious Wounding, and Malicious Wounding by Mob
  • Sex Crimes: Sexual Assault, Sexual Assault upon a Minor, Rape, Forcible Sodomy, and Object Penetration
  • Theft: Robbery
  • Manslaughter: Voluntary Manslaughter, Involuntary Manslaughter
  • Murder

References

Virginia Assault and Battery Cases

[i] Stith v. Commonwealth, No. 1210-00-2, 2001 Va. App. LEXIS 245 (Ct. of Appeals May 8, 2001).

[ii] Gnadt v. Commonwealth., 497 S.E.2d 887, 27 Va.App. 148 (Va. App., 1998)

[iii] Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955).

[iv] Taylor v. Commonwealth, 31 Va. App. 54, 521; S.E.2d 293 (1999).

[v] Pancoast v. Commonwealth, 2 Va. App. 28, 33, 340 S.E. 2d 833, 836

[vi] Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682

[vii] Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E. 2d 546 (2001).

[viii] Smith v. Commonwealth, 17 Va. App. 68, 435 S.E.2d 414 (1993)

[ix] Foote v. Commonwealth, 11 Va. App. 61, 66, 396 S.E.2d 851, 856 (1990).

[x] Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419 (1947).

[xi] Abdullah v. Commonwealth, 53 Va. App. 750, 675 S.E.2d 215 (2009).

Assault and Battery Laws and Related Sections of the Code of Virginia

§ 16.1-228. Definitions.

§ 16.1-253.4. Emergency protective orders authorized in certain cases; penalty.

§ 18.2-42. Assault or battery by mob.

§ 18.2-57. Assault and battery.

§ 18.2-57.01. Pointing laser at law-enforcement officer unlawful; penalty.

§ 18.2-57.02. Disarming a law-enforcement or correctional officer; penalty.

§ 18.2-57.2. – Assault and Battery against a family or household member. Penalty

§ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge.

§ 18.2-57.4. Reporting findings of assault and battery to military family advocacy representatives.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer who protects and serves those charged with criminal and traffic offenses in Northern Virginia. He is a member of the Virginia Association of Criminal Defense Lawyers, and has been certified by the Virginia Indigent Defense Commission. As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes private and court appointed indigent clients, and strives to improve the community. Mr. Vincenzes serves juveniles, adults, and families through his zealous and diligent advocacy, strategic planning, and skilled trial work. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. Mr. Vincenzes also offers estate planning services, including Wills, Trusts, and Powers of Attorney. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.

Comments

  1. John Speight says:

    If John Doe is charged with Code Section : 18.2-58 and Code Section : 18.2-51.2 in Prince William General District Court and will have his prelimin hearing soon. If the alleged victim is a “no show”, how likely is it the judge will toss the case? Probability: 0% to 100%.

    • You should ask a local attorney for a consult. I suggest a criminal defense attorney (not a general practice attorney). Whether or not the alleged victim’s no-show status results in a dismissal, will depend on numerous factors: here are just a couple…why is the victim a no-show? What is the accused’s criminal record? There is no reason why a person should ever go to a preliminary hearing without counsel. If you can’t afford one, get court appointed. If you can or don’t qualify for court appointed, by all means, please contact a few of us local attorneys, because most of us offer free consults. Please do not post any details about your case.

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