When many people hear the word “assault,” what comes to mind is punches and kicks.
Under Florida statute, however, someone can be charged with the crime of “assault” for making a threat.
The crime of assault is defined by Florida state law as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so and doing some act which creates a well-founded fear in such other person that such violence is imminent.”
That is, not only must a threat be made, but the accused must seem capable of following through and take an action that makes the intended target believe that violence is “imminent.”
“The clenching of a fist, or the swinging of a bat, for example,” said Russell Kirshy, a Charlotte County defense attorney.
Kirshy said he has had clients who were surprised they were being charged with “assault” for what they perceived to be a war of words.
“They’re accused of assault and they say, ‘I never assaulted anyone,’” Kirshy said.
What is commonly considered assault — physically attacking another person — is defined under Florida law as “battery.”
Craig Schaeffer, chief assistant state attorney for the 12th Judicial Circuit, said that any person-to-person contact — even someone spitting on someone else — can count as a battery.
“You have to have physical contact to have battery,” Schaeffer said.
Once the difference between assault and battery is explained to Kirshy’s clients, he said that they are then able to calm down and assess their options for the case against them.
Professor Pamella Seay said Florida’s definitions have its origin in the British common law definitions, which came to America through the colonial settlers.
“This is fairly common across the country,” said Seay, who teaches constitutional and criminal law at Florida Gulf Coast University.
Both Kirshy and Seay said it is easy for the average resident to be confused by the terminology. Many popular police shows use legal terms from cities like New York or Chicago, which tend to use the term “assault” to define a physical attack.
In New York, what Florida defines as assault would instead fall under the term “menacing.”
Courts, however, are careful to educate jurors about what charges are being brought and what the conditions are for certain charges — both officially in jury instructions and informally through an attorney’s opening and closing arguments at trial.
“If they come here from someone else, they may be accustomed to different terminology,” Seay said.
Assault is defined in Florida law as a second-degree misdemeanor — carrying a maximum term of 60 days of incarceration per count, or a $500 fine. Battery is a first-degree misdemeanor, with a maximum of up to a year in jail or $1,000 in fines.
An assault where a weapon was used as part of the threatening behavior — such as pointing a gun at someone — bumps that charge up to aggravated assault; a felony charge that introduces the possibility of prison at sentencing.
The use of a weapon in a battery also bumps it up to aggravated battery, a felony charge.
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