Simple assault and battery are class 1 misdemeanors, which can net a person up to one year in jail, a fine (up to $2,500), and other penalties, such as restitution. However, when a defendant targets someone of a protected class, then they can see their penalties jump. At Del Rio Law, PLLC, our Virginia criminal defense lawyers have deep experience helping clients fight back against assault and battery charges. Because a hate crime allegation is serious, we encourage you to reach out to us today.
What Are Assault & Battery?
Virginia law identifies “assault” as a crime and “assault and battery” as another, though the latter is often simply called “battery.” Regardless of the label used, assault and battery are easy to define, since these crimes are hundreds of years old.
Battery consists of the unlawful touching of another person without their consent. For example, shoving, pinching, punching, or slapping a person is a battery. Battery is usually committed with ill will; however, any willful touching could qualify. If the touching is accidental, then the defendant has not committed battery.
Battery also exists when a person throws an object that hits the victim. If you throw a milkshake at a politician or a baseball intending to hit your neighbor, you have committed battery.
Simple assault differs from battery in an important way—assault does not require that the defendant touch or hit the victim. Instead, our Supreme Court has defined assault as the following:
● The defendant commits an “overt act” that is intended to inflict bodily harm and which the defendant can inflict, or
● The defendant commits an overt act that is intended to make the victim afraid of bodily harm and does in fact create that fear
As you can see, no touching is required for an assault conviction. Taking a swing at a person would be enough, as would swinging a baseball bat if in close enough proximity. A key consideration is the defendant’s intent. As with battery, an accidental action would not be enough to secure a conviction for assault.
When Does Assault or Battery Become a Hate Crime?
Va. Code §18.2-57 lays out the penalties for simple assault and battery. As mentioned above, a person could spend up to a year in jail and pay a $2,500 fine. Of course, if this is your first conviction, then the odds of spending time in jail are fairly low—especially if the victim did not suffer a meaningful injury.
However, the Virginia Code pumps up the penalties if you are convicted of intentionally selecting someone because of their:
● Gender or gender identity
● Sexual orientation
● Religious conviction
● National origin
If convicted, a defendant must serve a minimum of six months in jail. This shows how seriously Virginia takes hate crimes. When the victim suffers a bodily injury, the defendant can be charged with a Class 6 felony and must serve at least six months in jail.
Defending against Hate Crime Charges
Our Virginia criminal defense attorneys understand how hate crime charges often rest on flimsy evidence. For example, the simple fact that a defendant attacked a person of a difference race would not, by itself, be enough to prove a hate crime has occurred. However, the media often presents these cases in those terms.
Instead, the government needs proof of your intent to target someone because of their protected status. Often, the government uses words the defendant uttered before or during the attack. But some creative prosecutors go farther afield and look at social media posts and comments made to friends about people who are different.
There Is No Time to Waste
The Virginia criminal defense lawyers at Del Rio Law can spring into action to defend you against assault or battery charges, including hate crime charges. Please contact us today to meet with an attorney for a free case evaluation.