The laws on assault and battery in South Carolina can be quite confusing. You may wonder what the difference is in each of the degrees of charges, whether the charge is a misdemeanor or felony, what jail sentence you face and other questions.
The arresting officer may not have explained the charge to you thoroughly. Even if the officer did, you may need a criminal defense attorney to serve as your advocate and advise you through the legal process.
Understandably, you may have many questions. Here are some commonly asked questions and answers:
1. Are assault and battery the same thing?
South Carolina law used to distinguish between assault and battery. Assault used to mean the threat of an unwanted touching. Battery was considered an act of unwanted touching. Today, both criminal acts fall under assault laws. According to 2012 South Carolina Code of Laws, Title 16, Chapter 3, Section 16-3-600, Together “assault and battery” is defined as,
<blockquote> “Causing injury to another person, or making an offer or attempt to injure another person with the present ability to do so.”
To better understand “present ability,” here are two examples:
Example One
Person A tells Person B he is going to punch him in the nose right now. Person A is in California. Person B is in South Carolina. There is obviously no way that Person A can punch Person B in the nose at that very moment since it’s physically impossible. The threat is not “imminent,” and it can’t happen at that very moment. Therefore this is no assault and battery.
Example Two
Person A tells Person B he is going to punch Person A in the nose right now. Person A and Person B are both in the same room and right near each other. In this case, Person A has threatened Person B and has the ability to make good on that threat. This means an assault and battery charge would be warranted.
2. What are the differences between assault and battery 1st, 2nd and 3rd degrees?
First, the accused person must have the present ability to cause injury.
The key distinction among the three degrees of assault and battery charges is the severity of injuries that are caused or could have been caused. Also, sexual intent of the accused (sometimes referred to as “unwanted touching”) also plays a role in determining which level of charge an alleged assault warrants. Let’s look at each charge individually.
1st degree assault and battery
- The accused person can be found guilty of assault and battery 1st degree If the accused person actually injures the victim, and one or both of the following occur
- The accused person touches the victim’s private parts without the victim’s consent (either under or above the victim’s clothing), and the accused person has lewd and lascivious intent; OR
- The accused person committed the assault and battery during a robbery, burglary, kidnapping or theft.
- The accused person can be found guilty of assault and battery 1st degree if the accused person threatens or attempts to injure the victim with the present ability to actually injure the victim and one or both of the following occur:
- The accused person’s act is accomplished by means likely to produce death or great bodily injury to the victim (Great bodily injury is “bodily injury which causes a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.” (Section 16-3-600)
- The accused person’s act occurs during the commission of a robbery, burglary, kidnapping or theft.
2nd degree assault and battery
To warrant an assault and battery 2nd degree charge, the accused person injures another person, or offers or attempts to injure another person with the present ability to do so and:
- The victim is moderately injured or the victim could have been moderately injured; OR
- The accused person touched the private parts of the victim (either above or under the victim’s clothes) and the victim did not consent.
3rd degree assault and battery
A 3rd degree assault is also called a “simple assault” or “simple assault and battery.” To warrant an assault and battery in the 3rd degree, the accused person:
- causes injury to the victim; or
- threatens or attempts to injure the person with the present ability to do so (Section 16-3-600(E)(1))
3. What is domestic assault and battery?
Domestic assault can be closely related to domestic violence, formerly known as Criminal Domestic Violence (CDV). The main difference between domestic violence and assault and battery is the relationship between the person charged and the victim. For domestic violence, the accused and the victim have to be male and female and also “household members.”
A “household member,” under SC Law, means the victim and the accused are male and female and:
- are married, OR
- used to be married, OR
- have a child in common, OR
- live together OR
- used to live together
If the accused and the victim are not “household members,” the correct charge is assault and battery. If the accused and the victim are “household members” the correct charge is domestic violence (also known as Criminal Domestic Violence, or CDV).
4. Is assault and battery a felony?
The answer depends on which classification of assault and battery you’re charged with.
| Charge | Felony or Misdemeanor |
|---|---|
| Assault and Battery, 1st degree | Felony |
| Assault and Battery of a High and Aggravated Nature (ABHAN) | Felony |
| Assault and Battery by Mob, 1st Degree | Felony |
| Assault and Battery by Mob, 2nd Degree (serious injury results) | Felony |
| Assault and Battery, 2nd degree | Misdemeanor |
| Assault and Battery, 3rd degree (Simple Assault, Simple Assault and Battery) | Misdemeanor |
| Assault and Battery by Mob, 3rd Degree (bodily injury results) | Misdemeanor |
| Assault with a concealed weapon | Misdemeanor |
The distinction between a felony and a misdemeanor is important. Felonies carry stiffer penalties than misdemeanors, such as heftier fines and longer jail sentences. Additionally, felonies cannot be expunged from a person’s criminal record.
5. What’s the penalty for assault and battery?
The penalties that can be imposed on people convicted of assault vary by the degree of the charge. The more serious the charge, the more serious the penalties:
- Assault and Battery 1st degree; Up to 10 years in jail
- Assault and Battery 2nd degree; Up to three years in jail and/or a fine up to $2,500
- Assault and Battery 3rd degree; Up to 30 days in jail and/or a fine up to $500
If you’re convicted of assault and battery, you may be prohibited from providing foster care to children or adopting them. Also, you could end up on the state’s Child Abuse Registry.
6. Can I go to jail for assault and battery?
Possibly, yes. If you’re convicted of assault and battery, you could potentially go to jail. Even for the least serious assault and battery charge (Assault and Battery 3rd degree), you can go to jail for up to 30 days.
There is no mandatory minimum jail sentence for assault and battery 1st, 2nd or 3rd degrees. This means you could potentially get probation, time served or pay a fine if you’re convicted. Some factors the court may consider in sentencing are
- accused’s prior criminal record,
- accused’s age,
- severity of victim’s injuries and
- whether the victim wants to prosecute.
The court can consider the victim’s opinion regarding whether the accused person should/ should not go to jail, but it is not necessarily the deciding factor.
7. Can assault and battery charges be dropped?
Potentially, yes. An attorney can review relevant portions of your case such as oral/written witness statements, police reports, 911 call recordings, video/audio footage, etc. and advise you on your possible defenses. Even if there are written or oral witness/victim statements, an attorney may advise you on any potential ways to discredit witnesses, such as their credibility or reliability, prior criminal record with crimes of dishonesty, etc.
There are a number of ways to possibly get an assault and battery charge dropped. Here are a few examples:
- The alleged victim wishes to dismiss the case [This is not a guarantee of getting the charge dismissed.]
- The person accused of assault and battery was acting in self defense
- The accused can prove the alleged victim is lying
- There is other evidence that the accused is innocent
- There is motive for the alleged victim reporting he/she was assaulted
8. Can assault and battery charges be expunged?
Click here for South Carolina’s standard expungement laws and requirements.
9. What should I do if I’ve been charged with assault and battery?
It’s important to consider speaking with a criminal defense attorney–one who can guide you through the pros and cons of your case and advise you on defenses you may have. If you’re charged with assault and battery use this form, or call 843-607-9800 to speak with an attorney.
