When you think of Assault and Battery what comes to your mind?
Most people think an assault means they suffered physical harm. But did you know that some degrees of assault do not actually require physical harm? A threat can be considered an assault if the threat was credible, the victim was reasonably in fear, and some other technical legal factors.
Did you know that in South Carolina, there are several different types of assault and battery? Also, assault is technically a separate definition from battery. This is one of those nerdy things I learned in law school and have used it in over 15 years of handling criminal cases. The terms sort of go hand in hand.
But what exactly is assault and battery? When is the crime in Magistrate or Municipal Court and when it is it heard in General Sessions Court? The answer depends largely on the severity of the victim’s injuries and may also depend on the circumstances.
In this article you will learn:
- The definition of assault and battery;
- Examples of what assault and battery looks like; and
- The details of each level of charges, including 1st, 2nd, and 3rd degree assault and battery, as well as ABHAN.
Assault and Battery Charges in South Carolina
Generally, assault means causing someone to fear that the actor will cause physical harm to the victim. Battery, on the other hand, is when the victim actually suffers physical harm. Thus, an assault can technically exist without a battery, but the SC statutes link them together under the charge titled “Assault and Battery.”
The 4 Types of Assault & Battery Charges
There are 3 degrees of Assault and Battery in SC. The more serious the injuries, the more jail time and/or fines a person can face. In addition to first, second and third degree Assault and Battery, there is a charge for Assault and Battery of a High and Aggravated Nature (ABHAN).
With all the degrees of assault and battery, keep in mind that the “degree” is not the same thing as the number of “offense.” For example, sometimes people call me and say, “I was charged with Assault and Battery third degree. This can’t be right because I’ve never been charged with Assault and Battery not even once before, much less twice before.”
I quickly explain that Assault and Battery third degree is not the same as Assault and Battery third offense. You can be charged with Assault and Battery third degree even if you have never been charged with Assault and Battery before, and even if it’s your first alleged offense in your life.
Assault & Battery Examples
There are many different examples of assaults and batteries that I either studied in law school, prosecuted, or litigated as a criminal defense attorney over the past 15 years.
A common example is when two people get into a fight. As long as the two people are not household members under the statute (they don’t live together in a romantic relationship, they are not husband and wife, they do not have a child in common and they have not lived together in a romantic relationship previously, they are not ex spouses), then a fight can be an example of assault and battery. Road rage is another example, depending on the severity of the injuries of the victim.
Here is another example: if someone is working at a nursing home facility, and they throw something at a patient at the facility, this could be Assault and Battery; however, if this was simply an accident and the person charged with assault and battery did not have the requisite intent to harm the victim, the state may have a harder case to prove.
Some other examples of assault and battery could be if someone knocks a phone out of the victim’s hand on purpose. If an aunt hits their niece without permission. Assault and Battery could include “pistol whipping” someone, pointing a gun at someone, directly or indirectly threatening someone (assuming the victim was reasonably in fear and the accused was capable of carrying out the physical harm, stabbing someone, running over someone (or attempting to). The list goes on of the different types of assault and battery.
How does law enforcement determine which degree to charge?
When the police are trying to determine what degree of assault and battery someone should be charged, they consider some of the following factors:
- Severity of injuries that victim suffered, if any at all (could include minor injuries, broken bones, temporary or permanent disfigurement, impairment of a bodily organ, loss of consciousness, surgery, stitches, etc.) The law in SC breaks down injuries into categories called “great bodily injury” and “moderate bodily injury”
- Desire of the victim to press charges
- Age of the victim
- Comparison in size (height and weight) of the victim and the person accused of assault and battery
- Whether a weapon was used during the assault and battery
- Whether the accused person touched the “private parts” of a victim
Assault & Battery of a High and Aggravated Nature (ABHAN)
A person commits ABHAN if the accused person unlawfully injures another person, and:
- The victim suffers great bodily injury; or
- Whatever the Defendant does to the victim is accomplished that would likely result in death or great bodily injury.
Great Bodily Injury
The SC statute clearly defines what great bodily injury is. Great bodily injury means the defendant causes the victim to have some kind of bodily injury that causes a substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
Example of ABHAN
Now, let’s break all this legal jargon down into something that makes sense.
Let’s say you have person A and person B. Person A (the victim) was peacefully sitting at a picnic table when Person B comes up behind Person A and repeatedly stabs Person A’s arm to the point that tendons are cut and the arm is almost cut off. The victim has to have multiple surgeries to gain movement of her arm again. Let’s assume Person B has no self defense argument and person B randomly chose the victim for no particular reason and they are strangers. Person B could be charged with Assault and Battery of a High and Aggravated Nature.
Why? The defendant caused great bodily injury and could have even caused death had the victim not been treated immediately by EMS for substantial bleeding. Let’s assume the attack on the victim left her permanently disabled and unable to have 100% use of her arm due to the severity of the injuries caused by the Defendant.
Penalties for ABHAN
If you are convicted of ABHAN on or after June 15, 2015, you are guilty of a felony. A felony will appear on your criminal record (“rap sheet”). The maximum possible jail sentence is 20 years. You couldn’t be sentenced to more than 20 years, but you could be sentenced to less than 20 years. There is no mandatory minimum prison sentence.
Assault & Battery 1st Degree
A little less serious than an Assault and Battery of a High and Aggravated Nature is Assault and Battery 1st Degree. Compared with Assault and Battery 2nd degree and assault and battery 3rd degree, a 1st degree charge carries the most jail time and is a felony.
The Charge
So what is Assault and Battery First Degree? When one person injures another person or offers or attempts to injure another person and is accomplished by means that could produce death or great bodily injury.
What does all of this legal jargon mean? Well, let’s take it bit by bit and examine it all to understand it. If you cause physical injury to another person, that’s the first part of this definition. Was the victim hurt? That would be the first clue. If the victim was not hurt, but the accused attempted to, threatened to, or tried to hurt the victim, that person could be charged with Assault and Battery First Degree.
And the final part of this definition — and this all goes together to make up the definition — that the accused hurt the victim or tried to hurt the victim and when he/she did so, he did it in a way that could have resulted in death or great bodily injury.
Assault and Battery 1st Involving Non Consensual Touching
Assault and Battery First degree can also involve the defendant inappropriately touching a victim on the victim’s private area and the victim either does not have the capacity to consent or the victim does not consent to the touching.
Now everybody seems to have their own ideas of what they call private parts and whatever they grew up calling their private parts. To avoid any ambiguity, the statute tells us exactly what “private parts” are: the genital area or butocks of a male or female or the breasts of a female.
In this type of Assault and Battery First scenario, the Defendant touches the victim without the victim’s consent either on top of the victim’s clothes or under the victim’s clothes. The Defendant must have lewd or lascivious intent. In other words, the Defendant is touching this victim to sexually arouse him/herself in some way.
For example, a child’s grandfather, with the intent of sexually arousing himself, touches the breast area of his 9 year old granddaughter. The granddaughter obviously did not consent to the unwanted touching. The grandfather could be charged with Assault and Battery First Degree.
Assault and Battery 1st During Certain Other Crimes
Assault and Battery in the first degree can also be when a defendant injures or threatens to injure a victim and the defendant did so during a robbery, burglary, kidnapping or theft.
For example, let’s say the Defendant breaks down the front door of a private residence of the victim who is a stranger to the Defendant. The Defendant’s purpose in breaking in is to steal some guns in the house and the Defendant is willing to threaten or harm whoever is in the house in order to rob the house of the guns. When the Defendant breaks into the house, he sees the victim and he ties her up, cuts her during the process with his knife, and threatens to shoot her if she calls the cops. The Defendant could be charged with Assault and Battery First Degree because of the actual physical injuries to the victim, threat of serious bodily injury to the victim, and the kidnapping (her freedom to escape or run is not possible due to the Defendant’s credible threats).
Assault and Battery 1st Involving Attempted Harm
Another example of Assault and Battery First Degree is when the accused gets in her car and intentionally tries to run over a pedestrian, or random person walking on the street. If the accused person doesn’t actually run over the victim, she can still be charged with Assault and Battery First Degree. Why? Because the car could be considered something that could be used to result in death. If this was an accident, there may be a defense. The State would need to prove beyond a reasonable doubt (the standard in criminal court) that the Defendant ran over this person on purpose and not by accident.
Fines, Penalties, Jail-time for 1st Degree Convictions
Assault and Battery first degree is a Felony and carries 0-10 years in jail/ prison. It is possible that someone could be sentenced to probation under this statute, but this would be up to the Judge. The judge would take into consideration various factors such as the victim’s input/ wishes, the accused’s prior criminal history, age, severity of the victim’s injuries, whether the Defendant was on probation at the time the crime was committed, and other factors. The judge can take other things into account as well.
Assault and Battery First Degree is a lesser included charge of Assault and Battery of a High and Aggravated Nature. Assault and Battery in the First Degree is also a lesser included offense of Attempted Murder. Your lawyer can explain how and why this is so important in your case.
Assault & Battery 2nd Degree
Assault and Battery Second Degree is a less serious charge than Assault and Battery First Degree. Remember, that Assault and Battery Second Degree is not the same as Assault and Battery Second Offense. Assault and Battery Second Offense means this is the second time this person has been charged with Assault and Battery.
If a person injures another person, or offers or attempts to injure another person and is accomplished by means that produce or could produce moderate bodily injury, then they can be charged with Assault and Battery Second Degree. Also, the accused person has to have the present ability to commit the assault and battery. The second part of the definition says that the act involves the non consensual touching of the private parts of a person, either under or above the clothing.
Moderate Bodily Injury Definition
Now, what exactly is “moderate bodily injury”? Who sets the standard for this definition? Well, “moderate bodily injury” is defined in the statute to help us out so it is applied the same to every person in a uniform way. “Moderate Bodily Injury” means physical injury, but also includes more…the physical injury involves loss of consciousness or can cause temporary or moderate disfigurement or temporary loss of the function of a bodily member or organ, or injury that requires medical treatment when the treatment requires the use of regional or general anesthesia or injury that results in a fracture or dislocation.
The statute even tells us what “moderate bodily injury” is not… Moderate bodily injury does not include one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.
Fines, Penalties, Jail-time for 2nd Degree Convictions
Assault and Battery 2nd Degree is a misdemeanor, not a felony. If you are convicted of Assault and Battery 2nd Degree, you are facing anywhere from zero to up to 3 years in jail. This means that there is no mandatory minimum jail sentence for a conviction of this crime. However, probation or a time served sentence is not a guarantee.
The judge will look at various factors at sentencing, including but not limited to the defendant’s prior criminal record, the victim’s wishes, the age of the defendant, employment of the defendant, defendant’s education and family background and other factors. The maximum jail sentence is three years for Assault and Battery Second Degree in SC.
SC law also provides that a fine can be imposed. This would be up to the judge and depend on various factors. The fine ranges from $0 up to $2,500.00 (plus court costs and fees). The judge could order jail time or a fine. The judge could also order just jail time. The judge could also order just a fine.
Having a lawyer to advocate for you at sentencing may be very important to your future. A lawyer can also advise you on whether you would be eligible for expungement of an Assault and Battery second degree charge conviction. You would want to take this kind of information into consideration before even deciding on whether to plead guilty, not guilty or go to trial. Know your future risks. Be proactive and protect your criminal record if possible.
Assault and Battery Second Degree is a lesser included offense of Assault and Battery First Degree, Assault and Battery of a High and Aggravated Nature (ABHAN) and Attempted Murder. Your attorney can help explain why these distinctions are so very important in evaluating your case.
Assault & Battery 3rd Degree
When the accused unlawfully injures another person or offers or attempts to injure another person, and the accused has the present ability to injure the victim, the accused can be charged with assault and battery 3rd degree.
Example of Assault and Battery 3rd Degree
One simple example of an Assault and Battery 3rd Degree charge is a high school fight that results in little or no injuries. If student A approaches Student B and pulls Student B’s hair, this could be an Assault and Battery 3rd. We are assuming in this example that Student B did not do anything to provoke Student A. We are assuming that Student A was not acting in self defense.
Fines, Penalties, Jail-time for 3rd Degree Convictions
Of all of the assault and battery charges, assault and battery 3rd degree is the least serious. It is a misdemeanor, not a felony. The minimum jail time is zero days and can be up to a maximum of 30 days in jail. There is no mandatory minimum jail sentence for Assault and Battery third degree. The judge could also order a fine that could range anywhere from zero to $500 (plus court costs and fees.
The judge has discretion in ordering:
- Just jail time (0-30 days) and no fine
- Just a fine (up to $500 plus court costs and fees and no jail time)
- A time served sentence (you are still considered “guilty” on your criminal record if you get a time served jail sentence for the time you have already spend in jail before you bonded out of jail) and no fine
- A fine of up to $500 plus court costs and fees and jail time up to 30 days in jail
If you are convicted of Assault and Battery third degree, you may have to pay restitution or money owed to the alleged victim if the victim can prove the restitution is reasonable.
Assault and Battery Third Degree is a lesser included offense of Assault and Battery Second Degree, ASsault and Battery First Degree , Assault and Battery of a High and Aggravated Nature (ABHAN) and Attempted Murder. Your attorney can explain why these differences are so important in your case.
A few important things about Assault & Battery:
Expungements
Your attorney can help you evaluate if you are eligible for an expungement if you are convicted of Assault and Battery. The lawyer can only advise you as to how the expungement law is as of the date that you are found guilty. Expungement laws can change over time. Some convictions for Assault and Battery may never be eligible for an expungement. Talk to your attorney about your options. The expungement may depend on your age, prior record and other factors.
Restitution
Restitution is money that is owed to a victim as a result of a crime. It is a way of making up for the damages or harm done during a crime. It attempts to return the victim to the original state. Money cannot always accomplish this, but may be ordered. If a defendant wishes to challenge a restitution amount, the Defendant’s attorney can request a restitution hearing. If a civil lawsuit is involved, the Court will take this into consideration. If pain and suffering is involved, lost wages, actual damages, or private insurance premiums, the Judge will explain how this is handled.
Sometimes there are victim’s funds available through the state of SC if the Defendant is unable to pay the restitution. Sometimes restitution is converted to a civil judgement. Restitution can be ordered to be paid as part of a probationary sentence or PTI (Pretrial Intervention).
Victim’s Right to be Heard
Under the Victim’s Rights’ Act, victims have certain rights when criminal cases are pending. Among them are the right to be present at hearings, trials, and different stages of the criminal case. And there are other rights. Some victims are not able to physically be present in court and may have a Victim’s Advocate appear on their behalf. Some victims appear with the victim’s advocate in court with other family members for support.
Self Defense
A common defense to assault and battery cases if there is a fight is self defense. A criminal defense attorney can review the facts and circumstances of your case and advise you of possible defenses, including self defense. This would depend on the primary aggressor and whether the victim provoked the defendant.
Restraining Orders
Sometimes defendants are prohibited from being around, communicating directly or indirectly with victims or their families as a condition of their bond. Sometimes it can be in the form of a temporary or permanent restraining order. Sometimes a defendant can be put on trespass notice. Your attorney can advise you on how to abide by these orders. The orders are to be taken very seriously and should never be violated.
If you have general questions about Assault and Battery, please follow this link to see some common questions and answers that may help.
Need help with your Assault & Battery charge in SC?
If you or someone you love is facing an assault and battery charge, you may want to explore your options with a free consultation with attorney Susan E. Williams. As a former state prosecutor with over 15 years of criminal law experience, she and her team will be happy to hear about the details of your case and explain possible defenses you may have.
