Is it a threat? Or just words? The difference between a conviction for assault and keeping a violent offense off your record

A frequent argument we see in trials for assault is whether a threat alone constitutes an “assault.”

In Virginia, there are two kinds of ‘assault.’ One is attempting to offensively touch another person. This can be swinging a bat, throwing a punch, or hurling an object at another person—regardless of whether the other person knew the attempted battery was made. The second is putting the person in reasonable fear of being touched offensively—which does not require that the offender have the ability to batter someone, just putting the other person in reasonable fear they will do so.

An example of an unconditional threat would be a statement like “I am going to kill you.” Along with other circumstances, that statement could constitute an assault that could be prosecuted.

The more difficult situation is one with a statement like “If you don’t stop that, I’m going to punch you.” Depending on what the ‘victim’ is doing, the statement might not constitute an assault. Is the ‘victim’ doing something he is entitled to do?  Is the ‘perpetrator’ doing anything else physically that would make the ‘victim’ think he was going to punch him? Is the ‘threat’ over phone or by text message?

In one case, a person was screaming profanities two inches away from deputies who had entered his home, telling them “if [they] didn’t leave, it would be a … bloodbath.” He then called the Virginia State Police to have the deputies removed. The deputies arrested him, saying they felt threatened and had told him to back off. But that defendant was acquitted by the Court of Appeals of Virginia because he hadn’t been armed, he had no weapons deputies saw in his home, never raised his hands at them, and his statement was not an assault by threat.

A charge for assault by threat is an unusually fact-intensive case. There are decades of cases that courts use to distinguish “true” threats from “conditional” ones. It is critical to have someone helping you who can not only appear in court with you—but who also knows what facts are important to show a judge or jury. Failing to present those can result in a conviction of an offense that others will see as a potentially violent misdemeanor and it can adversely affect the rest of your professional and personal future.

If you have been charged with assualt or battery, or another crime in central Virginia, including Richmond, Chesterfield, Henrico, Hanover or the surrounding jurisdictions, and have questions about your options, please contact the criminal law attorneys at Winslow & McCurry, PLLC at (804) 423-1382.