Assault & Battery Defense Lawyer in Chicago
If you have been accused of assault or battery, the criminal defense legal team at Mitchell S. Sexner & Associates LLC can successfully help guide you through the court process.
What Is a Battery?
In Illinois, a battery is the unlawful touching of one person by another. But what kind of touching you might ask? Well really, it means almost any kind of contact, no matter how slight, unless it's with the permission of the other person. So, a handshake, a hug, a slap on the back, a kiss, or a romantic encounter are all considered to be acceptable and legal contacts as long as these meet with the approval of the other party.
But a touching that is ok in one setting may be a crime in another. A pat on the rear end is fine if you’re a football player in the locker room or it involves your partner. But do the same on the CTA bus with another passenger and you’ll likely find yourself arrested. Slap a friend on the back to congratulate him for a job well done and all is well. But do the same to a stranger at the grocery store and you may soon be held by the store security officer until the Chicago Police arrive.
Under our Illinois law, found at 720 ILCS 5/12-3, a battery is described as a touching that involves one of two distinct circumstances: those involving harmful contact and those involving insulting or provoking contact.
Battery Involving Bodily Harm
Watch any police or lawyer television show and you’ll quickly get the general idea that a battery involves hurting someone else. But most people think that a battery must cause serious harm to the other person, causing them to bleed, bruise, get a black eye or sending them to the hospital. It's true that all of these things are in fact batteries because whenever you seriously hurt another person, this type of conduct always qualifies as a battery. But under the law in Illinois, if harmful contact or bodily harm is alleged, it’s not necessary to show permanent or serious harm. If a victim tells the prosecutor or judge that it hurt when the contact was made, and they are believed, then this will likely satisfy the requirement of bodily harm or harmful contact. There are many batteries that don’t leave permanent damage or hurt for long. Even if it only hurt momentarily, it will likely be sufficient to prove that a battery occurred.
Can a Battery Happen Without Touching?
In fact, you don't even have to directly touch the other person. As long as the judge believes that you intentionally or recklessly set events in motion that ended up causing harmful contact to the victim, it will be sufficient. Some examples of a battery that do not involve any direct contact include:
- Spitting on another person
- Throwing an object (any object – we once had a client who threw a burrito at someone from a motorcycle)
- Hitting someone with a car on purpose
- Striking glass with a hand or an object and then the victim being hit by glass shards
- Recklessly shooting a bullet up in the air on New Years Eve over Lake Michigan to celebrate, and later learning that the bullet came down and injured someone
Battery Involving Insulting or Provoking Contact
But surprising to most people is the fact that a battery doesn't even need to hurt! Under Illinois law, a battery can either result from bodily harm or from what is called “physical contact of an insulting or provoking nature” with another person. The whole crime of battery is premised on the concept that people need to leave other people alone (many other crimes are based on this premise as well, from disorderly conduct to sex offenses). People just don’t like to be bothered by others and nobody likes to be hurt, insulted or provoked.
So almost anything can potentially be a battery as long as a touching occurs (or as explained previously, an object touching another person) and the victim reasonably feels insulted or provoked from the contact. Some examples might include:
- Poking someone lightly in the shoulder to make a point
- Pushing someone’s hand away
- Throwing papers at another in frustration
- Splashing water onto another
The possibilities of what may be considered provoking or insulting to another are endless. The key however, is that the victim’s feelings must be reasonable under the particular circumstances. Anyone can say that they were offended by anything they wish. But it’s not fair for a person to be found guilty of a crime by a court just because someone says they were offended; a judge needs to make a determination about this.
There are many physical acts that are clearly insulting or provoking such as spitting on another. Virtually no judge would dispute that such feelings would be valid. But what if the defendant took one of the victim’s McDonald’s French fries and intentionally dropped it on his shoe. It would be physical contact, that’s true. But even if the victim swore to the Judge that that the act was insulting and provoking and it really upset him, is a Judge obligated to accept his feelings as reasonable? No. Maybe the Judge will agree with him and find the defendant guilty and maybe the judge will not. Each case is different.
Is it a Battery if it’s an Accident?
Contact that is truly accidental isn't a battery though. If you step on someone's toe accidentally while waiting in line at the DMV, it's just an accident, even if it hurts a lot. If you quickly turn around with scissors in your hand and accidentally stab someone seriously, it’s probably still just an accident even though the injury may even be life-threatening. That’s why people are not charged with a battery when they have a car accident. It’s just an accident. Even if someone is killed in a car accident, the driver may get a ticket for improper driving, but they shouldn’t normally get charged with a battery or other criminal case.
Is it a Battery if it’s Done Recklessly?
But keep in mind that this is different from a situation where the defendant has acted recklessly. Acting in a reckless manner means that the defendant is doing something that they knew or should have known was likely to cause harm to another. So, in the example of shooting a bullet up in the air to celebrate, no one can predict where the bullet might come down. They certainly weren’t purposely shooting the bullet in the hopes of it striking someone. But was this a reckless act that the shooter should have known could very well end up injuring someone? Absolutely. As a result, if an injury occurred, some judges might find such a person guilty of a battery or reckless conduct (or worse).
In the case of that person who injured (or killed) someone in a car accident, what if the driver was driving crazy, weaving in and out of traffic at high speeds while smoking Cannabis? A judge might decide that this person was guilty of more than mere traffic violations and had committed a battery, reckless driving or reckless homicide under such circumstances, as a reasonable person would have known that something bad would likely happen by doing that. Every case is different.
So, batteries that hurt as well as batteries that are just insulting are both still batteries. They're equal under the eyes of the law and whether in Chicago, or any other city in Illinois, the crime is a Class A misdemeanor that's punishable by up to a year in jail and up to $2500 in fines.
Have you been accused of assault or battery in Chicago? Our experienced defense attorneys can help you.
What Is an Aggravated Battery?
Whereas a regular battery in Chicago and throughout Illinois is a misdemeanor, there is a more serious class of battery charges called Aggravated Battery which are classified as felony offenses. An aggravated battery happens when a person commits a regular battery, but while doing so, also does something else that makes the crime more serious, dangerous, harmful or morally offensive in some way. These additional actions are called “aggravating factors” and include such things as:
- Causing permanent disfigurement, disability or causing great bodily harm (serious harm)
- Causing serious harm by using a poisonous gas, bomb, explosive, radioactive substance, biological / chemical agent, flammable substance or caustic substance such as acid
- Causing harm to someone known to be a police officer, police volunteer, private security officer, fireman, or certain employees supervising sexually violent or dangerous people, while the victim was doing his/her job. If the battery was done to prevent the victim from doing their job, or in retaliation, or was at least 60 years old, or involved strangulation, then it would qualify as an aggravated battery.
- When the defendant is 18 or older, causing harm to a person or child with severe intellectual abilities or to any child under the age of 13
- When committing a battery, does so on/at a “public way”, public place of amusement, public property, domestic violence shelter, synagogue, church, mosque, or sports venue
- When a battery is committed and the offender knows that the victim is:
- 60 years old or older
- Has physical disabilities
- A teacher or school employee at or near school
- A judge, utility worker, emergency management worker, or emergency management employee while performing official work and battered in retaliation for, or in an attempt to prevent that person from performing his/her duties
- Officers or employees of a school district, local government, or the State of Illinois while performing official duties
- Transit passengers or transit workers while performing work duties
- On-duty taxi drivers
- A merchant who is trying to detain a person alleged to be committing a retail theft
- A process-server while performing his/her work duties
- A nurse while performing his/her work duties
- When a battery is committed and the offender does one of the following things related to the use of a firearm:
- Injures another by discharging a weapon
- Injures certain police related personnel or emergency service personnel by discharging a weapon while the victim was doing his/her job, and the battery was done to prevent the victim from doing their job, or in retaliation for doing so
- Injures another by discharging a weapon when that person is known to be a teacher, school employee or student while on or adjacent to school property
- Injures another by discharging a machine gun or weapon equipped with a silencer
- Injures another with an air rifle or deadly weapon other than a firearm
- Wears a mask, hood or robes to hide his/her identity
- Flashes or shine a laser gunsight that is attached to a firearm at another person
- Audio or video records a battery with the intention of disseminating it
- Unlawfully delivers a controlled substance to another person, who as a result suffers permanent disability or great bodily harm as a result of the drug usage
- Causes another person to take by deception, by threat or without the victim’s knowledge, any harmful substance intending to cause physical injury to the victim
- An inmate in a correctional facility that causes seminal fluid, urine, blood or feces to come into contact with a Department of Human Services employee
An aggravated battery may be categorized from a Class 4 felony all the way up to the most serious aggravated battery which includes when a person shoots a firearm (especially a machine gun) at others, causing bodily harm. Those are considered class X felonies, with enhanced penalties for the use of the firearm.
|Crime||Potential Penalties||Supervision Eligible?|
|Assault||Class C Misdemeanor||Yes|
|Aggravated Assault||Class A Misdemeanor|
Class 4 Felony
Class 3 Felony
Class 2 Felony
|Battery||Class A Misdemeanor||Yes|
|Aggravated Battery||Class 3 Felony|
Class 2 Felony
Class 1 Felony
Class X Felony
|Domestic Battery||Class A Misdemeanor|
Class 4 Felony
Class 3 Felony
Class 2 Felony
|Aggravated Domestic Battery||Class 2 Felony||No|
What is a Domestic Battery?
A domestic battery is very similar to a regular battery in that they are both Class A misdemeanors. What makes a regular battery a domestic battery though is that a domestic battery involves bodily harm that is caused to a household or family member, whereas a regular battery does not. Until the 1990’s, this distinction between regular and domestic battery didn’t make much difference though as the sentencing alternatives were basically identical, although expungement rules differed slightly.
But after the nationally televised acquittal of O.J. Simpson for the brutal domestic-related double murders for which he was charged, states all across the country took a much harder look at their domestic violence laws; Illinois was no exception.
Before Illinois updated its laws, defendants charged with both battery and domestic battery were equally eligible for the sentence of supervision. Supervision has always been a good sentencing result for those who plead guilty or are found guilty in Illinois for two main reasons: 1) supervision is not technically a conviction and therefore defendants do not need to disclose a supervision if asked whether they have ever been “convicted of a crime”, and 2) supervision is generally expungeable, which means that if certain criteria is met, a defendant may be able to destroy record of his/her official criminal history, fingerprints and mug shot after a period of time has passed.
Supervision is not an Available Sentence
When Illinois changed its laws concerning domestic battery, their basic intention was to make sure that people who were found guilty of that crime wouldn’t be able to hide it later and then commit similar acts against other future victims. So, what they did was remove the possibility of getting supervision for this crime. Now, if a person pleads or is found guilty of domestic battery, the judge cannot give supervision (no matter how much he/she may wish to). That doesn’t mean that the accused must go to jail, however. It just means that the only available sentences are probation or conditional discharge. Just like supervision, these sentences are merely periods of time during which the defendant needs to stay out of trouble and perform certain requirements for the judge. The main (and significant) difference though is that they cannot be expunged later.
In practical terms, this distinction often has a significant effect on how defendants and experienced criminal lawyers approach such cases. Depending on the case, a knowledgeable domestic violence attorney may be able to convince the prosecutor or state’s attorney to amend the charge from domestic battery to a regular battery. Even though such a charge would remain a Class A misdemeanor, the benefits of supervision as detailed above may make this an attractive offer. On the other hand, should defendant and his/her attorney choose to take part in a jury or bench trial, the major risk is that if defendant is found guilty after a trial, the judge will be without authority to give supervision and the probation or conditional discharge will be permanent on the offender’s criminal rap sheet/record.
Is Domestic Battery a Misdemeanor or a Felony?
Usually, domestic battery is a Class A misdemeanor. But there are circumstances where the charge may instead be a felony including:
If the defendant has a prior conviction for violation of order of protection (Class 4 felony)
If the defendant has a prior conviction for one of the following crimes and that crime was committed against a household or family member (Class 4 felony):
- First degree murder
- Aggravated domestic battery
- Aggravated battery
- Heinous battery
- Aggravated battery with a firearm
- Aggravated battery with machine gun or silencer
- Aggravated battery of a child
- Aggravated battery of an unborn child
- Aggravated battery of a senior citizen
- Stalking or aggravated stalking
- Criminal sexual assault
- Aggravated criminal sexual assault
- Kidnapping or aggravated kidnapping
- Predatory criminal sexual assault of a child
- Aggravated criminal sexual abuse
- Unlawful restraint or aggravated unlawful restraint
- Aggravated arson
- Aggravated discharge of a firearm
If the defendant has 1 or 2 prior convictions for domestic battery (Class 4 felony)
If the defendant has 3 prior convictions for domestic battery (Class 3 felony)
If the defendant has 4+ prior convictions for domestic battery (Class 2 felony)
What is Aggravated Domestic Battery?
As explained above, sometimes a domestic battery can be a felony under some circumstances. But there is also an entirely different criminal charge called Aggravated Domestic Battery which is always a felony. Under the law in Illinois, it’s considered an Aggravated Domestic Battery if either:
- While committing a domestic battery, the defendant causes to the victim permanent disability, great bodily harm or disfigurement
- While committing a domestic battery, strangles the victim (which is basically defined as intentionally interrupting the circulation of blood or breathing of a person by applying pressure to the neck or throat or by blocking the mouth or nose of that person). No permanent damage need to be done to qualify as strangulation. If the interruption is even momentary, most judges will likely find that this act meets the definition of strangulation.
Who is Considered a “Family or Household Member” for Purposes of a Domestic Battery?
As explained above, the distinction between a regular battery and a domestic battery is important for a great many reasons, including whether the arrest can ever be expunged from a defendant’s rap sheet (official criminal record). This distinction is entirely based on the characterization of the relationship between the defendant and the victim. According to the law in Illinois, a family or household member is defined to include a:
- Former spouse
- People related by blood
- People related by a current or former marriage
- People who share or formerly shared a common dwelling
- People who have a child in common
- People who allegedly have a child in common
- People who share a blood relationship through a child
- People who allegedly share a blood relationship through a child
- People who have or had a dating relationship
- People who have or had been engaged
- People with disabilities and certain of their assistants & caregivers
Those who are just casual business or social acquaintances don’t qualify under this definition, so even if they have worked with the same person for years and even share the same office space, it’s not considered a domestic battery if a crime occurs.
Because this distinction is so important in determining which crime will be charged by the State’s Attorney, some defendants and their lawyers will attempt to demonstrate to the court that the relationship between the parties doesn’t meet this definition, and therefore that the defendant should be charged as a regular battery instead. Ultimately, a Judge would make such a decision after hearing details about their relationship to determine whether they were just friends or were dating for instance.
Other battery-related criminal offenses
Battery of an Unborn Child
In Illinois, a person who knowingly, in any manner, and without any legal justification causes bodily harm to an unborn child, commits this offense which is a Class A misdemeanor. If great bodily harm occurs, then the charge would be considered “Aggravated Battery to an Unborn Child” and this would be considered a Class 2 felony. For purposes of this law, an unborn child is considered to be any human from embryo to birth.
Criminal Transmission of HIV
In Illinois, it’s a Class 2 felony for someone to engage in sexual relations with another:
- without a condom, knowing that he or she is infected with HIV, or
- donates or transfers any semen, tissue, organs or other bodily fluids for implantation, insemination, transfusion or the like, knowing that he or she is infected with HIV, or
- transfers, sells, exchanges or delivers any drug paraphernalia used intravenously or intramuscularly, knowing that he or she is infected with HIV
Tampering with Food, Drugs or Cosmetics
In Illinois, it’s a Class 2 felony for someone to put into any drug, food or cosmetic any substance that is capable of causing great bodily harm or death to any human being, when that cosmetic, food or drug is offered for consumption or sale.
When a person commits a reckless act that endangers the safety of another or causes bodily harm to that person, this is a Class A misdemeanor in Illinois. If this reckless conduct causes permanent disability or great bodily harm to that person, then this crime is considered a Class 4 felony instead.
It’s a Class 2 felony in Illinois when a person causes any object to fall from an overpass or other higher location and with the intention of striking a motor vehicle while traveling down a highway (which would include other Illinois roadways), strikes that vehicle. If death results from the impact, then this crime is charged as a Class 1 felony instead.
What is an Assault?
Another thing that television police and lawyer shows usually have wrong is that they often conflate the crimes of “assault and battery” together as if it were one thing. In reality, people can be charged with Assault, they can be charged with Battery or they can be charged with both, as the definition of each offense is different.
Whereas a battery always involves a touching or contact of some sort (whether directly or with another object or substance), an assault involves no such contact. When a person is placed in "reasonable apprehension" of receiving a battery (even though no such contact ever happens), that is what is called an assault.
What Does it Mean to be in Reasonable Apprehension?
It means that the person must reasonably believe that he or she, or someone else, is about to be touched or harmed; in other words, that they reasonably perceive that they are in imminent danger of receiving a battery. Ultimately, a judge will make the final determination of whether the victim was in reasonable apprehension or not, just like a judge will do in a battery case when deciding whether a victim was actually insulted or provoked by contact with the offender. Again, that’s because it’s not fair to convict a defendant just because someone else says that they were in fear of receiving a battery; it needs to be reasonable fear. Every circumstance is different.
For instance, consider a situation where the offender clenches his fist and shakes it in the victim’s face: So many factors go into every evaluation of whether the victim was in reasonable apprehension of being battered. How close were the parties? How big or muscular was the offender? What words accompanied the actions?
What if the offender was a 16 year old girl scout outside the grocery store. The victim didn’t want to buy any cookies and the girl scout leaned over her card table, shook her fist at the 6’2” bodybuilder and screamed “I’m going to kick your butt!”. Most judges would agree that this was not an assault. But switch places, and almost any judge would believe that the opposite was true.
Both battery and assault are misdemeanors that can seriously and permanently affect a person’s life. The attorneys at Mitchell S. Sexner & Associates LLC have handled thousands of such cases over the years and will work hard to get the charges dismissed or reduced. You can contact us 24 hours a day at (312) 644-0444.
What is Aggravated Assault?
Just like a battery can be aggravated depending upon the circumstances, so can an assault. Aggravated assault occurs when someone, while armed with a dangerous or deadly weapon, commits an assault upon another. It can also happen when although the offender is unarmed, that person commits an assault upon a protected class of people such as a police officer, correctional officer, fireman, employee of a local government authority, teacher, person at least 60 years old, taxi driver, transit employee or person with a physical disability, to name a few.
Assault can also be upgraded to an aggravated assault based upon where the interaction took place, such as a public place, public property, place of amusement, sports venue, or place of worship.
While most aggravated assaults are still misdemeanors, some assaults against certain protected people, and involving the use of firearms, are class 3 or class 4 felonies. So, if you face charges of assault, battery, or the aggravated versions of these offenses, you’ll need experienced lawyers that know how to defend these types of cases.
Defenses for Assault & Battery in Chicago
When contact is made with another person, whether the contact results in bodily harm, or a touching that is perceived as provoking/ offensive, there are only a few defenses to a battery. Sometimes the other person may have consented to the contact or invited the contact. Other times, the contact may be the result of a pure accident with no intent to touch the other person. But unless the other person consented to the contact or unless there's a defense as to why the person committed a battery, a judge will likely find the defendant guilty at trial. So, what kind of defenses are there if this happens? In Illinois, if the contact was not an accident, then there really are only a few defenses, including self-defense, defense of others, and defense of a dwelling or of other property. Self-defense means that you committed a battery on the other person because that was the only reasonable way for you to avoid being hurt.
You Can’t be the Aggressor
If you were the aggressor and started the fight, it's not self-defense, unless you withdraw from the conflict, and the other person goes after you (the attacker becomes the attacked). If you carry on the fight past the point where it is reasonably necessary, it is no longer self-defense. If you're a grown man and the other person is a little girl, it's probably not self-defense. If the other person hit you with a snowball and then you hit him with a hammer, it's not self-defense either. Basically, every case is different but in order for it to be self-defense or defense-of-others, then you must show that you were being attacked, or were going to be attacked, and that you had a reasonable apprehension of receiving a battery directed at you, or at someone else. When the defense of self-defense (or defense of others or defense of property) is put forth at a trial, the judge will typically be very interested in a moment by moment breakdown of exactly what happened first, then next, then next. Only in this way can the court get a handle on whether the defense is valid.
Does Self-Defense Apply to Aggravated Battery or Homicide?
The laws regarding defense of self, or another, or one’s dwelling or other property, vary from case to case. The laws recognize that, in some circumstances, lethal (meaning deadly) force may be necessary to prevent loss of life, or great bodily harm, to that person or others. When determining whether lethal force was appropriate and necessary, the court takes into account all of the circumstances. As long as a person has a reasonable apprehension that, without the use of lethal force, that death or great bodily harm would happen to him/herself or another person, then it will likely be considered self-defense. If someone is at home, and another person is trying to break in, and they are doing it in a loud, disturbing way (kicking the door down as an example), with the intent to commit an assault on the people inside, or any other felony or theft, lethal force is generally allowed, even if the attacker may actually turn out to be unarmed. On the other hand, if someone is trying to break into an unoccupied storage shed, lethal force will not be authorized by law, and it will not normally be self-defense to use such force.
Chicago is one of the deadliest cities in the nation, with a high number of gun and armed violence cases. The good news is that the number of homicides has recently been dropping by double-digits, thanks to improved technology and more police involvement. Nevertheless, under certain circumstances, it is relatively common to be charged with armed violence, even if you haven’t been violent, contrary to what the name suggests. Illinois legislation is very specific, and armed violence cases can become very complicated and serious if a defendant has a criminal record or if drug crimes are involved. That’s because even the presence of a dangerous weapon is considered a health and public safety threat.
What are the Elements of Armed Violence?
Under Illinois law, there are three sections that define when a person commits armed violence.
- The first section states armed violence occurs when a person commits a felony while armed with a dangerous weapon. Some felonies that are excluded from this statute are:
- First-degree murder
- Attempted first-degree murder
- Intentional homicide of an unborn child
- Second-degree murder
- Involuntary manslaughter
- Reckless homicide
- Predatory criminal sexual assault of a child
- Aggravated battery of a child that involves great bodily harm
- Home invasion
- A person commits armed violence if he or she discharges a firearm that falls under Category I or Category II weapon descriptions while committing a felony that is not included in the list of above-excluded crimes.
- Armed violence is also committed when a person discharges a Category I or Category II firearm that causes serious bodily harm, disability, or death while committing a felony that is not included in the aforementioned exclusions.
What is a Dangerous Weapon?
There are dozens of types of guns and weapons that may relate to an armed violence charge and subsequent punishment. The following are some Category I weapons:
- Sawed-off shotgun or rifle
- Semiautomatic firearm
- Machine gun
- Firearms small enough to be concealed on a person
Below are some Category II weapons:
- Stun gun or taser
- Daggers, dirks, switchblades or knives with blades 3 inches or longer
- Ax, throwing star or hatchet
- Object that project a noxious substance or gas, unless designed just for self-defense and carried by someone 18 or older
The following are Category III weapons:
- Metal Knuckles
- Billy Clubs
All of the weapons listed above are considered inherently dangerous and deadly. One may not possess dangerous weapons such as these under normal circumstances on their persons, in an automobile, in their homes or places of work or business, except as might otherwise be authorized by the law. The Armed Violence Statute doesn’t seek to punish anyone who lawfully possesses a weapon, but it does intend to punish more severely anyone who commits a felony while armed with a dangerous weapon.
Speak to our Experienced Assault and Battery Defense Team
Whether you have been charged with battery, assault or another violent crime, contact the Chicago criminal defense attorneys at Mitchell S. Sexner & Associates LLC for more information. We have been helping people charged with serious offenses for over 30 years and have a track record of successful results in Chicago, across Cook, Lake, DuPage, Kane, McHenry, Will counties and elsewhere in Illinois. Call (312) 644-0444 today for free information.