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It’s common to use the word “assault” when describing a physical attack. In the everyday use of the word, there’s a general implication that physical attack was carried out in some meaningful way -- for example, someone threw a punch and also landed it. But, in the world of criminal law, “assault” as a legal term does not require the physically aggressive act to have been successful. In other words, it’s just as much a crime to swing and miss, so long you meet the legal elements of the offense.


To prove you are guilty of PC 240, Simple Assault, the DA must prove each of the following elements beyond a reasonable doubt: 

1. The you did an act that would directly, and probably, result in the application of force to a person;

2. You did that act willfully;

3. When you  acted, you were aware of facts that would lead someone to realize that your act would directly and probably result in the application of force to someone;

4. When you acted, you had the ability to apply force to a person; AND

5. You did not act in self-defense, or in defense of someone else.


Let’s briefly examine the basic example of throwing a punch at someone, and missing, and whether that meets the elements above. Were you shadow boxing by yourself while your enemy stood 20 feet away? Or did you swing within striking distance of actually landing your punch? If so, element 1 -- whether your act would directly and probably result in the application of force to a person -- is met. 

What does “willfully” mean?

The first element examines whether you acted willfully -- what exactly does that mean? Someone commits an act willfully when he or she does it willingly or on purpose. It doesn’t matter whether or not you intended to break the law. This element doesn’t examine the justifications of your actions; it’s a simple look at whether you were acting on your own volition. For instance, were you in the middle of an uncontrollable seizure and accidentally swung your arm? If so, you were not acting willfully. Odds are this situation does not apply to your case and the DA will be able to prove this element.

How much force is unlawful?

Any touch in a harmful or offensive manner is considered simple assault. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. 

OK, so you don’t have to throw fists of fury to meet the element. Just trying to lightly whack or poke someone, even if it wouldn’t cause an actual injury in a million years, can still meet the element if you did it in some form of a hostile way.

Does the touching have to be direct?

No, the touching can be done indirectly by causing an object, or even someone else to touch the other person. It’s not a loophole to use some other object or person to carry out your hostile act. You can’t throw a football at someone’s head and then claim the pigskin, not you, was responsible.

Does the DA have to prove that you actually touched the other person?

No, the DA is not required to prove that you actually touched someone. It simply doesn’t matter whether you actually touched the other person on the skin, his or her clothes, or even at all (so long as you were reasonably close to making contact).

What if you never intended to actually touch the other person?

Let’s say your intent was to just joke around. For example, you threw a sandwich near a person you were mad at but didn’t really intend for any part of that sandwich to hit the other person. It doesn’t matter. The DA is not required to prove that you actually intended to use force against someone when you acted. 

But I was intoxicated -- is that a valid defense?

Not a chance. Voluntary intoxication (meaning you weren’t drugged without your knowledge) is not a defense to simple assault. Imagine if a drunk guy stumbling out of a bar unjustifiably threw a punch, but missed, at some poor innocent guy doing nothing wrong, and then simply came to court and successfully defended his actions by saying, “Your Honor, I was drunk.”  That won’t cut in criminal court. The criminal law demands consequences to assaultive behavior -- even if it was minor, and even if the act was ultimately unsuccessful.

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