I frequently meet with clients who are facing charges of malicious wounding, which is a Class 3 felony, who are wondering why they were not charged with simple assault, which is a Class 1 misdemeanor.
Obviously, the difference in potential punishments is huge: 20 years in state prison for malicious wounding versus 12 months in jail for assault; however, what they want to know is how the offenses themselves are different.
Let's start at the lowest level, with simple assault under 18.2-57. If you read the code, you will notice that it doesn't really define the terms "assault" or "battery". That is because these are what are known as "common law" offenses, in other words, offenses dating back to our legal system's English roots.
An assault is basically an offer to do violence to another, coupled with the means by which to do so. A battery is any unwanted touching of another.
- Assault does not require physical contact at all, simply an expressed offer to engage in unwanted physical contact.
- Battery, however, does require unwanted physical contact.
Assault in Virginia can be a felony in certain circumstances, for example a third offense assault against a family member (see 18.2-57.2) or assault on a law enforcement officer. That being said, assault is usually a Class 1 misdemeanor punishable by up to 12 months in jail.
When is an assault charge elevated to malicious wounding?
Things get far more serious when the Commonwealth's Attorney decides that the facts of a physical altercation rise above a simple assault and battery, and they elect to charge an individual with malicious wounding
What Is Malicious Wounding?
Malicious wounding is not a common-law offense. Under Virginia Code §18.2-51, in order to be convicted of malicious wounding a person must:
- shoot, stab, cut, or wound or by any means causes bodily injury to another person,
- maliciously, and
- with the intent to maim, disfigure, disable, or kill
For purposes of this statute, bodily injury can be inflicted simply by striking with fists or other body parts, in other words, a weapon need not be used.
Malicious Wounding vs. Unlawful Wounding
If the defendant engages in this conduct but without "malice", then he is guilty of unlawful wounding (a Class 6 felony), instead of malicious wounding. Malice is a complicated concept, but it is largely centered around that conduct which is calculated and deliberate, with minimal provocation.
Aggravated Malicious Wounding
There is an even more serious version of malicious wounding, referred to as aggravated malicious wounding under 18.2-51.2. This offense is a Class 2 felony, punishable by 20 years to life in prison. Aggravated malicious wounding is the same as malicious wounding, with the additional element that the victim must be "severely injured and is caused to suffer permanent and significant physical impairment."
Returning to the initial question (and the one that comes up most often) the difference between simple assault and malicious wounding really lies in the state of mind of the defendant. The question for the jury is whether the individual acted with the intent to cause bodily injury, and whether the individual acted with malice.
If the person acted with intent to cause bodily injury, and did so with malice, then he is guilty of malicious wounding. If the person acted without malice, then he is guilty of unlawful wounding. Finally, if the person acted without the intent to cause injury at all, he would be guilty only of assault and battery.
Contact the Law Office of Shawn M. Cline, PC For Defense
As you can see, there are a myriad of issues involved with these kinds of cases, far more than I can discuss here. If you have been charged with an assault or with malicious wounding, contact us right away. The stakes are high, and time is of the essence in building your defense!