Virginia criminal law differs slightly from the common law. In common law and in civil context assault and battery are two separate acts. Assault is essentially putting someone in fear of bodily injury through threats or actions whereas battery is non-consensual touching with intent to cause harm which actually causes injury, however slight.
If a person and their assault lawyer in Norfolk can show that he or she acted in self-defense then he or she has not committed battery.
In Virginia criminal law, assault and battery are consolidated into one single Class 1 Misdemeanor charge, which is punishable by up to a year in jail but the penalty is typically a lot lower. Often it is just a fine. However a number of factors can result in much harsher punishments.
These include degree of harm suffered by the complainant, any use of a weapon, intent of the defendant, identity or occupation of the complainant can play a role, or the existence of prior assault convictions by the defendant also.
The more seriously injured the complainant is the more likely the defendant is to receive a harsher sentence if convicted of an assault. If the government can prove beyond a reasonable doubt that the defendant intended to cause serious injury, grave bodily harm that defendant can be convicted of malicious wounding, which is a very serious felony that can result in five years to as much as a life sentence in prison.
If a weapon is used in the assault it becomes much more likely that the defendant will be charged with malicious wounding instead of assault and battery. Use of a weapon can also result in additional charges related to that use.
Furthermore, there could be added penalties for assaults that are carried out on police officers, medical professionals, teachers or others based on their occupation. Also, assaults that are carried out because of the race or religion or nationality of the victim are treated as hate crimes and also punished more severely.
In Virginia simple assault cases originate in the General District Court. Trials in the GDC take place in front of a judge. There is no jury and the judge makes a determination of guilt or innocence and imposes sentence on any defendant who is found guilty.
If a misdemeanor assault is committed by a juvenile, or is committed by an adult against a juvenile, or is committed by an adult against a family member that case will go to Juvenile and Domestic Relations Court, which is similar to the GDC but contains certain added privacy protections for juveniles and victims as well as judges with more experience dealing with all aspects of domestic relations.
Felony assaults and malicious wounding cases often also originate in the General District Court where the court will hold a preliminary hearing. In that hearing the judge considers testimony and motions to strike evidence and then determines whether there is probable cause to try the case. If the judge finds probable cause, which is very often the case in preliminary hearings because the standard is so low, the case then moves on to the Circuit Court.
In the Circuit Court the defendant has additional rights and protections such as the right to record of the proceedings, right to a jury and many other rights and protections that are essential to due process.
Because the General District Court does not have these protections, defendants convicted of misdemeanor assault also have the absolute right to appeal their case from the GDC or the Juvenile and Domestic Relations Court to the Circuit Court, under the guidance of an experienced Norfolk assault attorney. If they do so that case will be heard “de novo” or “as new”. Everything that happened in the lower proceedings will be wiped away.
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