Experienced Virginia Lawyer for Assault and Battery, Attorney Joseph Yoon of Yoon Law Firm, Fairfax, VA – § 18.2-57 Assault and Battery

The Virginia state code for assault and battery (§ 18.2-57) does not differentiate nor specifically define what either assault and battery are, and definitions for the terms can vary across jurisdictions. The general/brief difference between the two is that assault can be described as an intentional act that constitutes a threat, or indirect contact that caused the victim to fear/question their safety after the instance. On the other hand, battery is widely known to be actual physical contact that caused/could have caused harm and with the intent to.

However, the two terms are more or less treated the same under the code, often go together, and the committing of both, or just one, of these offenses can result in the charge. However, because the two terms differ in definitions and characteristics, the arguments against the charges can vary in court and those differences can help make way for potential defenses for your case.

Penalties for Assault & Battery in Fairfax and Virginia

In Virginia, assault/battery is the most serious misdemeanor as a Class 1 misdemeanor. The punishment for a conviction of this offense can reach up to a maximum of 12 months in jail and a fine of up to $2,500. The circumstances begin to change dramatically when the victim of the crime was targeted for their background. The state code specifies in particular victimization due to “race, religious conviction, color or national origin”, and a list of different types of officials (refer to C. of § 18.2-57) who are in involved in legal and/or public service duties while the offender knew/should have known of their position, will raise the charge to a Class 6 Felony. If injury had been inflicted as a result of the physical altercation, and if there is a conviction of this felony, the offender can be looking at imprisonment for one to five years or 12 months in jail, and a fine up to $2,500.

Once the charge becomes a Class 6 Felony, mandatory minimum jail sentences are also imposed. The conditions and related minimum sentences include:

  • The victim’s race or religion was the reason for the assault/battery (30 days in jail)
  • The victim’s race or religion was the reason, and injury occurred (30 days in jail, and the charge becoming a felony)
  • Assault/battery was committed against a law enforcement officer on duty, and the offender knew/should have known of the officer’s position (6 months in jail)
  • Assault/battery was on a school official on duty, and the offender knew/should have known of the school official’s position (2 days in jail)
  • The assault/battery was on school property, with a weapon prohibited on school property (increased to 6 months in jail)
  • Assault/battery was committed on the premises of a medical facility against a health care official on duty, and the offender knew/should have known of their position (2 days in jail)

Apart from the potential to serve time behind bars, there are other consequences if found guilty as well, including:

  • A definite permanent criminal record without possibility of expungement
  • Restitution for the victims’ medical expenses
  • Anger management courses
  • Probation
  • Court order preventing any contact with the victim

To Be Found Guilty of Assault, Battery…

Like every criminal charge, all elements of the offense must be proven beyond a reasonable doubt. As mentioned above, although assault and battery can sometimes be used interchangeably and results in the same charge in Virginia, their differing definitions causes different ways to prove them, and as a result can also give rise to varying defenses. With that said, in order to prove that the victim was actually assaulted, it must be proven that the accused 1) intentionally, 2) committed an overt act intending to cause physical harm (or intend to cause the fear of physical harm, and/or caused the victim to reasonably believe so), 3) and had the immediate ability to 4) cause physical harm.

When one makes an “overt” act of assault, they are making a physical gesture or movement, and not just verbally announcing it. Attempting some sort of strike to the victim’s body or throwing an object towards them are examples of this. The code also adds that getting into a fighting stance, or showing any signs of getting ready to attack, can make the victim reasonably believe that the accused will take harmful action against them, and therefore amounts to a charge as well. Because of this, actual physical contact does not necessarily need to have happened in the incident to be counted as assault.

With battery, the conviction relies on proving beyond a reasonable doubt that the accused 1) willfully 2) made unwanted 3) physical contact to the victim 4) in an angry, rude, insulting or vengeful manner 5) using their body or by some other means under their control and discretion. As you may have noticed, a difference here is that physical contact is included, but actual harm or injury does not have to be in the picture. However, if serious bodily injury was inflicted to the victim and the victim survived, you may be charged with a number of different “greater-included” offenses of assault and battery, thus ultimately increasing the probability of more severe penalties.

Fighting Assault/Battery in Fairfax County Court

The elements listed above must be proven beyond a reasonable doubt in order to prove that assault and battery occurred and that the characteristics for the charge had been met under the code. If there is any evidence to suggest that any of those elements were not present beyond a reasonable doubt, then possible defenses can be made –


  • No intention: If the act being assumed as assault was not intentional and/or there was no conscious effort to commit the overt act.
  • No overt act: There was no overt act fulfilled, perhaps just verbal threats. Since the code specifically states an “overt” threat, just threatening with words does not amount to assault.
  • No present ability to cause harm: There must be an immediate ability to cause physical harm.
  • No fear of harm caused in the victim: The victim had a reason to believe that the accused was able to, and would take action against them.


  • Physical contact was not willful: Similar to no intention for assault, the accused did not willfully/consciously intend to move their body in such a way to inflict harm.
  • Consent: There was consent/agreement between the victim and the accused to engage in physical contact.
  • The contact was not done in an “angry, rude, insulting or vengeful manner”: In other words, the battery did not come from a negative/guilty conscience.

Self-defense is also a possible stance for challenging the charge, if the circumstances resemble:

  • Self defense where the victim was the initial aggressor: Self defense could be argued if the victim was the first to provoke the reaction that is being considered assault, and it was a response of self defense from the harm that the accused believed they saw coming. The force taken must have been reasonably necessary for protection from the harm, and must have been less than or equal to the amount of harm that the accused perceived.
  • Self defense where the accused was the initial aggressor: If the evidence shows that the accused was indeed the provoker of the dispute, but despite their attempts afterwards to abandon/de-escalate the increasingly heated dispute, the victim initiates the altercation anyway and caused the accused to defend himself/herself, then self defense may be argued.
  • Defense for reasons other than self defense: If the charge occurred as a result of defending others, defending habitation (home), and/or defending property.

You may feel your assault and battery charge was unjustified, and that you don’t want to simply accept a guilty conviction. If so, there may be viable defenses for your specific case –  give assault and battery attorney Joseph Yoon of Yoon Law Firm, PLLC, a call and find out the next best step for your case and how it may hold up in court.