How to Avoid an Assault Charge

How to Avoid an Assault ChargeAccording to the Federal Bureau of Investigation Uniform Crime Reporting Program, there were 385,278 aggravated assaults in one recent year and 1,025,711 other types of assaults. It is important to remember that not everyone accused of assault is guilty in the eyes of the law. For example, if the victim of an assault voluntarily takes part in an activity that results in accidental injury (such a “mutual combat”), the victim may not be able to successfully accuse the other of assault.

For example, if you engage in a playful fight with your friend and end up getting hurt, the court may say that you voluntarily took part in the situation. If you have been wrongfully accused of assault and battery, it is crucial to learn more about the charges and how you can defend yourself.

What Are Assault and Battery?

When two people argue, it can sometimes turn into a physical altercation. If this gets serious enough, it can involve the police. In Illinois, assault and battery are two different criminal offenses. Additionally, there are varying degrees of assault and battery.

Under Illinois law, assault is the intentional action that causes a reasonable person to fear there is impending violence. For example, if someone approaches you with a clenched fist or a raised hand, that’s probably assault. In Illinois, words alone are not considered assault. However, if someone threatens to beat another person in a physical manner, and the threat is accompanied by actions consistent with the threat, it can be categorized not just as an assault, but as a battery.

Battery is physical contact that intentionally causes bodily harm (or contact of an insulting or provoking nature), such as hitting or throwing an object at someone. In Illinois, knowingly harming an unborn child at any stage of pregnancy may be a misdemeanor battery or a Class 2 felony with an enhanced charge of aggravated battery.

A charge of battery may also be brought when a member of the family or household is injured in an assault. However, if it’s the offender’s second conviction or the offender has a prior conviction for violating a protection order, the misdemeanor battery charge can be elevated to a felony with more severe penalties.

Penalties for assault may include jail or a fine or both. The penalty can also include probation for up to two years, and community service and/or restitution to the victim for any property damage or injuries.

Battery is a class A misdemeanor and carries a punishment of up to one year in prison and a fine of $2,500 or both. The offender may also receive probation for up to two years and be required to pay restitution to the victim in addition to other possible penalties.

Factors That Can Escalate the Charge to Aggravated Assault

Assault and battery can be simple misdemeanors when other factors are not involved. For example, the charge can be elevated to aggravated assault if a deadly weapon is involved, such as a:

  • Firearm
  • Knife
  • Explosive device
  • Brass knuckles
  • Nunchucks
  • Clubs or baseball bats

Other actions may also elevate the charge from assault to aggravated assault. For example, knowingly assaulting a teacher, school employee, Park District employee, first responder, or an employee of the State Department of Public Aid can elevate the charge to aggravated assault. Other factors include knowingly assaulting an employee of the State of Illinois, a handicapped individual, or someone over the age of 60.

Possible Defense Strategies Against Assault

There are several types of defenses that an experienced criminal defense attorney may consider, depending on the facts of your case. Those include what is called a negating or an affirmative defense. A negating defense attacks the elements of the prosecutor’s case and asserts that the defendant is not guilty.

Since the prosecutor has the burden of proving the defendant is guilty, a negating defense can bring doubt to one or more of the essential elements. These elements can include forensic evidence, physical evidence, or eyewitness testimony since the prosecutor must prove each element beyond a reasonable doubt.

An affirmative defense justifies the defendant’s actions and provides an explanation for the seemingly illegal conduct. Essentially, the defendant acknowledges that their actions were illegal but with justification. Examples of affirmative defenses include:

  • Self-defense: The most common affirmative defense against an assault or battery charge is self-defense. However, to prove self-defense, the defendant must show there was a threat of harm against them, and they had reasonable fear they were in immediate danger. Additionally, the threat must not have been provoked by them, and there must have been no other easy route for escape.
  • Defense of others: Using this affirmative defense is similar to self-defense with many of the same components, except that the defendant was protecting another person from potential harm.
  • Defending property: In this case, the defense proposes that the defendant feared there would be an illegal invasion of their property or harm to their property.

Take These Steps to Prepare Your Defense

If you are accused of assault or aggravated assault, you should fight to protect your rights. The following steps can help ensure that you are treated fairly within the legal system.

  • Do not speak to the police without your attorney present. Even if you’re accused or charged with assault, you are not obligated to speak to law enforcement or sign a written statement. While under stress, you may make a statement that can be misinterpreted later and used against you in court. You have the right to remain silent, and it is crucial that you use that right. You also have a right to an attorney to represent you and protect your rights. It is never a good idea to act as your own lawyer for any criminal charge.
  • Do not contact the alleged victim. After an arrest for assault or battery, the court will almost always issue an order to prevent you from contacting the alleged victim. This includes contact in any form, including social media, texting, phone calls, or visiting their employment or home. If you violate this, the court can revoke your bond, and you may stay in jail until your case comes to court. You could also face further criminal charges.
  • Gather documents and evidence. You and your criminal defense attorney should take this time to gather evidence to defend your case. It is important to write down the details of the event that led to the arrest and charges. Do this as soon as possible since time and distance from the events can muddy your memory. Make a list of the witnesses involved and work with your attorney to collect information and evidence that will support your case.
  • Get educated and understand your rights. The criminal defense attorneys at Mitchell S. Sexner & Associates LLC work with you to ensure you understand the process and understand your rights. They will help identify strategies you can use to protect yourself and to ensure the litigation process is not hindered by inadvertent communication on your part.

If you have been arrested or charged with assault or aggravated assault, you want the experienced attorneys at Mitchell S. Sexner & Associates LLC by your side. Our skilled legal team has represented more than 20,000 satisfied clients since 1990. Call our offices today at (312) 644-0444 for a confidential consultation. We will discuss your case and offer you advice on your next best steps.

Written by Mitchell S. Sexner Last Updated : June 26, 2022