Cape Cod and the Islands are popular summer vacation destinations. The number of visitors in the summer swells as people flock to beaches, bars, and BBQs. The police, of course, are aware of the potential problems that arise from summer activities.

An assault may be committed in either of two ways.  It is either an attempted battery or an immediately threatened battery.

A battery is the harmful or offensive, unpermitted touching of another person. 

Type 1: An Attempted but Incomplete Battery person holding notebook with assault and battery law written on front

The first type of assault occurs when the defendant intended to commit a battery but was unsuccessful   

To be found guilty of this form of assault, the Commonwealth must prove beyond a reasonable doubt that the defendant:

1. Intended to commit a battery (the unpermitted touching);

2. Took some type of overt action towards accomplishing that intent; and

3. Came reasonably close to committing the battery.

Our criminal defense attorney says a good example of this would be intentionally swinging a baseball bat at someone and missing. However, with Type 1 assault, the Commonwealth doesn't need to show that the alleged victim was fearful of the attempted battery or was even aware of it in the first place. These types of cases, like any crime of attempt, require proof of both the specific intent to cause harm and an overt act towards causing that harm. Mere preparation is not enough. 

Type 2: A Threatened Battery

The second type of assault occurs when the defendant threatens to commit an unpermitted, harmful, or offensive touching

To prove this type of assault, the Commonwealth must prove, beyond a reasonable doubt, that the defendant: 

1. Intended to put the alleged victim in fear of imminent battery;

2. Engaged in some conduct towards the alleged victim; and

3. The alleged victim reasonably thought an unpermitted touching was imminent. 

Using the baseball bat example, if the defendant stood close to the alleged victim and waved the baseball bat overtly and menacingly, that would be a threatened battery. 

Unlike the first form of assault, threatened battery requires that the alleged victim be aware of the defendant's objectively menacing conduct. 

Can I be arrested for an attempted battery or a threatened battery? 

Yes, but only if the police witness the attempted battery. If the alleged victim reports the attempted battery to the police, the police will do an investigation and if they believe the crime has occurred, they will file a criminal complaint and you will be summonsed to court. An exception to this is if the attempted battery occurs during domestic violence.  If that's the case, the police can arrest probable cause. If the defendant and the alleged victim are married, have a child together, or were in a dating relationship, the defendant may be charged with assault on a family or household member, which may cause the penalties to be increased. With information like this at hand, we see the importance of having a Nantucket criminal defense lawyer by your side.

Am I going to jail for assault?

Misdemeanor assault carries with it a sentence of not more than 2.5 years in the House of Correction; or a fine not more than $1,000.

Felony assault carries with it a sentence of State Prison not more than 5 years or House of Correction not more than 2.5 years; and/or a fine of not more than $5,000.

Nate Amendola
Massachusetts criminal defense attorney, helping resolve OUI, domestic violence, drug and criminal charges