Utah Criminal Code 76-5-102: Assault–Penalties
1. Assault is:
a. an attempt, with unlawful force or violence, to do bodily injury to another; or
b. an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.
2. Assault is a class B misdemeanor.
3. Assault is a class A misdemeanor if:
a. the person causes substantial bodily injury to another; or
b. the victim is pregnant and the person has knowledge of the pregnancy.
4. It is not a defense against assault, that the accused caused serious bodily injury to another.
What Is An Assault?
In legal terms, an assault refers to “the intentional creation of a reasonable apprehension of harm.” This refers to situations in which one person causes another person to fear being harmed. Thus, assault is an attempt or threat that causes another person to be apprehensive of imminent bodily harm. An example of this would be if a person pulls their fist back as if they were going to punch someone, and that person believes that they are going to be punched. Assault is often confused with battery, due to the fact that assault and battery are commonly charged together. However, assault is a separate charge from battery. Assault refers to the fear of being harmed, whereas battery refers to the actual act of harming another person. Battery is the unlawful use of force against a victim, with the intent to cause injury, or offensive touching. In some jurisdictions, assault may also be considered to be attempted or unsuccessful battery. Although assault is considered to be an intentional tort, every state has its own criminal statutes for both assault and battery. This means that an assault could serve as the basis for a civil lawsuit as well as prosecution by a state court, which could result in fines and/or jail time. An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.
What Are The Elements Of Assault?
Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim. The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim. Intent is an essential element of assault. In tort law, it can be specific intent, if the assailant intends to cause the apprehension of harmful or offensive contact in the victim or general intent if he or she intends to do the act that causes such apprehension. In addition, the intent element is satisfied if it is substantially certain, to a reasonable person, that the act will cause the result. A defendant who holds a gun to a victim’s head possesses the requisite intent, since it is substantially certain that this act will produce an apprehension in the victim. In all cases, intent to kill or harm is irrelevant. In criminal law, the attempted battery type of assault requires a Specific Intent to commit battery. An intent to frighten will not suffice for this form of assault. There can be no assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury. The usual test applied is whether the act would induce such apprehension in the mind of a reasonable person. The status of the victim is taken into account. A threat made to a child might be sufficient to constitute an assault, while an identical threat made to an adult might not. Virtually all jurisdictions agree that the victim must be aware of the danger. This element is not required, however, for the attempted battery type of assault. A defendant who throws a rock at a sleeping victim can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.
What Is An Aggravated Assault?
An aggravated assault, punishable in all states as a felony, is committed when a defendant intends to do more than merely frighten the victim. Common types of aggravated assaults are those accompanied by intent to kill, rob, or rape. An assault with a dangerous weapon is aggravated if there is intent to cause serious harm. Pointing an unloaded gun at a victim to frighten the individual is not considered an aggravated assault.
What Is The Punishment For Assault?
A defendant adjudged to have committed civil assault is liable for damages. The question of the amount that should be awarded to the victim is determined by a jury. Compensatory Damages, which are aimed at compensating the victim for the injury, are common. Nominal damages, a small sum awarded for the invasion of a right even though there has been no substantial injury, may be awarded. In some cases, courts allow Punitive Damages, which are designed to punish the defendant for the wrongful conduct. The punishment for criminal assault is a fine, imprisonment, or both. Penalties are more severe when the assault is aggravated. Many states have statutes dividing criminal assault into various degrees. As in aggravated assault, the severity of the crime, the extent of violence and harm, and the criminal intent of the defendant are all factors considered in determining the sentence imposed.
To prove that a person is guilty of misdemeanor assault a prosecutor must prove that:
• the accused did an act that by its nature would directly and probably result in the application of force to a person;
• the accused did that act willfully;
• the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone;
• when the accused acted, he or she had the present ability to apply force to a person, and
• the accused did not act in self-defense, or in defense of someone else.
The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
To prove that a person is guilty of felony assault a prosecutor must prove that:
• the accused did an act:
• with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person, OR
• the act by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury, OR
• the accused used a firearm,
• the accused did that act willfully,
• the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone,
• when the accused acted, he or she had the present ability to
• apply force likely to produce great bodily injury, OR
• with a deadly weapon other than a firearm, OR
• with a firearm, the accused did not act in self-defense, or in defense of someone else.
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
A deadly weapon other than a firearm is:
• any object, instrument, or weapon that is inherently deadly, or
• one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
Punishment For Assault In Utah
The punishment for assault in Utah ranges from misdemeanor probation and county jail, to felony probation and state prison sentences.
Simple assault is a misdemeanor punishable by:
• up to six months in county jail,
• a fine of $1,000.
Please note that the punishment for simple assault can be doubled if committed against specified people (police officers, firefighters, medical personnel, and others).
Aggravated assault can be either a misdemeanor or a felony punishable by up to:
• one-year county jail as a misdemeanor,
• two, three, or four years state prison as a felony,
• a $10,000 fine.
Assault with the intent to commit certain felonies is a felony and generally punishable by:
• two, four, or six years state prison
• a $10,000 fine.
Please note that certain sentence enhancements or other factors might increase these penalties and make assault charges strikes under Utah law.
Defenses to assault charges in Utah could include;
• mistaken identity,
• self defense,
• defense of others,
• the force used was not likely to cause great bodily injury,
• no use of a deadly weapon.
An experienced criminal defense attorney defending a Utah assault case will:
• work with private investigators,
• interview and re-interview witnesses,
• visit crime scenes, and
• consult with experts.
What Are The Types of Assault?
In the legal context, assault implies a threat or an attempt to physically strike or touch a person in an offensive way. This is regardless if or not the contact has been made or not. The assault is a misdemeanor but it is regarded as a felony since it is an act of criminal violence against an individual. There are varied types of assault and the penalties for the same vary vehemently.
Felony Assault: This is regarded as an attempt to attack or an unlawful attack through violence or force that has caused a physical injury to a person. In this assault, the weapon is utilized and is regarded as an assault irrespective of whether or not the victim suffers from physical pain or injury.
Simple Assault: In this assault, the weapon is not utilized and the injuries occurred to the victim is minor in nature. This is also known as a lesser degree of assault and is usually considered as a misdemeanor and is charged for the same. The mere threat of the serious injury which the victim fears from is immediate and real enough to regard this as an offense.
Sexual Assault: Sexual assault is regarded as the use of force against the will of the victim. This is also considered as rape and includes sexual penetration without the consent from the victim. For example, a husband can be charged and also convicted for sexually assaulting or raping his wife. Even voyeurism or improper touching is also deemed as a sexual assault. There are more serious penalties for a sex crime and the offender can be sentenced to life imprisonment. If you have faced such an issue, you can hire an assault lawyer.
Aggravated Assault: This assault occurs with the use of a weapon or an increased amount of force. In order to be considered as an aggravated assault, the offender should have the intent to cause a serious bodily injury or use a deadly weapon like a bat, gun, knife, in order to cause a permanent or temporary injury. Assaulting a public official like a fireman, police officer, or judge is considered as a felony even if the victim has sustained only minor injuries.
What Is Needed to Prove Assault?
When proving assault, there are specific elements of proof that the prosecution must fulfill in order to prove an assault occurred. These elements of proof must be proven beyond a reasonable doubt, as it could be a defense against the assault charge if one or more elements cannot be successfully proven.
These elements of proof include:
Intention: In order for assault to be proven, the defendant must have intended for their acts or conduct to create an apprehension of fear or harm in the victim. As such, accidental or unintentional acts are not considered to be an assault;
Reasonable Apprehension: The victim must have been reasonably apprehensive of being harmed by the defendant. Alternatively, the victim must have reasonably perceived that a harm or threat of harm was being directed towards them. If the victim was not aware of the threat, it may not be enough to successfully prove an assault. An example of this would be when a person aims a weapon at a person, behind that person’s back, without that person being aware of what’s happening behind them;
Imminent Harm: The victim’s harm must be a direct response to an imminent threat of harm, or a threat that is immediately about to occur. The harm can either be physical, such as a kick or a punch, or a threat of unwanted and offensive contact, such as a sexually suggestive touch or embrace. No matter the type of harm, future threats will not result in assault charges; and
Harmful or Offensive Conduct: The defendant’s actions or conduct must have presented a physical threat, or their behavior must have been offensive to the victim. An example of this would be pretending to kick or punch the victim, or attempting to spit on them. When proving an assault, the theory of reasonableness is often brought up.
Do I Need an Attorney for Assault Charges?
You should always have an attorney. Call Ascent Law LLC if you believe you have been assaulted, or you are being accused of assault, you should immediately contact a skilled and knowledgeable criminal attorney. An experienced criminal attorney can help you understand your state’s laws regarding assault, and compile evidence supporting your claim. Finally, an attorney can represent you in court as needed.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Recent Posts
Lawful And Unlawful Use Of Force
Drafting LLC Operating Agreements
American Sign Language Attorney
{
“@context”: “http://schema.org/”,
“@type”: “Product”,
“name”: “ascentlawfirm”,
“description”: “Ascent Law helps you in divorce, bankruptcy, probate, business or criminal cases in Utah, call 801-676-5506 for a free consultation today. We want to help you.
“,
“brand”: {
“@type”: “Thing”,
“name”: “ascentlawfirm”
},
“aggregateRating”: {
“@type”: “AggregateRating”,
“ratingValue”: “4.9”,
“ratingCount”: “118”
},
“offers”: {
“@type”: “Offer”,
“priceCurrency”: “USD”
}
}
Ascent Law St. George Utah Office
Ascent Law Ogden Utah Office
The post Utah Criminal Code 76-5-102 first appeared on Michael Anderson.
Source: https://www.ascentlawfirm.com/utah-criminal-code-76-5-102/
No comments:
Post a Comment