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ASSAULT
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Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand assault refers to the actual violence, while in other jurisdictions, such as the United States, England and Wales, assault refers only to the threat of violence, while the actual violence is battery. Simple assaults that do not involve any aggravation such as use of a deadly weapon are distinguished from aggravated assaults.
Assault is often defined to include not only violence, but any physical contact with another person without their consent. When assault is defined like this, exceptions are provided to cover such things as normal social behavior (for example, patting someone on the back).
English law makes distinctions based on the degree of injury, between:
In most jurisdictions, an assault occasioning grievous bodily harm (or its equivalent) may amount to murder in certain circumstances.
American jurisprudence
American common law has traditionally defined assault as an attempt to commit a battery.
Assault is typically treated as a misdemeanor and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony.
Four elements were required at common law:
As the criminal law evolved, element 1 was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states. Modern American statutes define assault as:
Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.
States vary whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.
In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.
Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212
Example
Two men wave metal pipes threateningly at each other in an alley. They are ten feet away from each other. When one man advances, the other retreats, maintaining the distance between them. The police come and break up the disturbance. They charge each man with assault.
The men would probably not be found guilty in an American common law jurisdiction. Being ten feet away does not make it likely or apparent that he would have the present ability to carry out an unlawful act.
However, they may be found guilty in a modern American jurisdiction. Each man is trying to cause bodily injury to another and the fear of bodily injury is reasonable.
Some possible examples of defenses, mitigating circumstances, or failures of proof are:
Aggravated assault
Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person:
Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to murder, to rape etc.), the extent of the injury to the victim, or the use of a deadly weapon, although legal definitions vary between jurisdictions. Sentences for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the perpetrator.
General defenses to assaults
Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:
Consent
Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognised good reason for the assault. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognised as a defence of consent.
Arrest and other official acts
Police officers and court officials have a general power to use force for the purpose of effecting an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary. However in Scottish Law, consent is not a defense for assault.
Punishment
In some jurisdictions, caning and other forms of corporal punishment are a part of the culture. Evidently, if it is a state-administered punishment, e.g. as in Singapore, the officers who physically administer the punishment have immunity. Some states also permit the use of less severe punishment for children in school and at home by parents. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
Self-defense
Self defense and defense of others may be defenses to liability. They usually require that force was necessary and the degree of force was reasonable.
Prevention of crime
This may or may not involve self defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.
Defense of property
Some states allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help.
FALSE ACCUSATIONS
Very many persons accused of assault, especially sexual assault, are either innocent or having been found guilty by a Court, are later found to have been innocent all along.
Under current legislation the accuser's identity is protected, whereas the accused is not. Where the majority of persons accused turn out to be innocent, during the period they are under suspicion, they are reported in the press, with an assumption of guilt, which usually ruins their lives: relationships and businesses. This particularly applies to Carers or Teachers, or those involved in such professions.
The man in the street is particularly vulnerable when entering into a relationship, since he or she has no body to turn to for advice and is not in any event tuned into the potential dangers. Those most at risk include males joining single parent families with children, and most especially young girls who are most likely to hurl accusations and usually where a relationship is not working or is breaking down.
F.A.C.T.
(Falsely Accused Carers and Teachers)
Guidance for education staff and volunteers in schools
SOME PROMINENT CASES:
The scales of injustice
The government's criminal justice reforms, proposed in the recently published White Paper, are based on a 'single clear priority' to 'rebalance' the criminal justice system 'in favour of the victims of crime' and to 'bring more offenders to justice'. The explicit goal is to make it easier for the prosecution to secure guilty verdicts and to convict more people. This would seem to be at odds with the reality of criminal justice in England and Wales. The prison population stands at an all time high of over 70 thousand and the prosecution already achieves the conviction of over 95 per cent of defendants at magistrates' courts and 87 per cent of defendants in the Crown Court.
The White Paper seems to be to forget that that not all of those brought to trial will be guilty. A reform agenda framed in a language of 'putting the victim first' overlooks the fact that there are many victims of the present criminal justice system. Any human system can make mistakes, and that miscarriages of justice can and do occur. But, just how many miscarriages of justice victims of the present system are there?
We tend to think about miscarriages of justice as rare and exceptional occurrences. Prominent cases such as the Birmingham six, Guildford Four, Bridgewater four, M25 three, Cardiff three, Stephen Downing, and so on create the impression that miscarriages of justice are seen as very much an intermittent, high profile and small scale problem; that there are very few victims in the context of the statistics of all criminal convictions. But there are many more cases than those which receive prominent coverage in the media. Those cases of criminal conviction that are routinely quashed by the Court of Appeal (Criminal Division), or by the Crown Court for convictions previously obtained in the magistrates' court have received no attention at all.
If we pay more attention to these routinely quashed convictions, we find a scale of miscarriage of justice to fundamentally challenges any notion that the current system of criminal justice is weighted too much in favour of the defendant. The Lord Chancellor's Department's statistics on successful appeals against criminal conviction show that in the decade 1989-1999 the Court of Appeal (Criminal Division) abated over 8,470 criminal convictions - a yearly average of 770. In addition, there are around 3,500 quashed criminal convictions a year at the Crown Court for convictions obtained at the magistrates' courts. Contrary to popular perceptions, then, wrongful criminal convictions are a normal, everyday feature of the criminal justice system - the system doesn't just sometimes get it wrong, it gets it wrong everyday, of every week, of every month of every year. With the result that thousands of innocent people experience a whole variety of harmful consequences that wrongful criminal convictions engender.
Justice for All also states that there is an 'absolute determination to create a system that meets the needs of society', 'wins the trust of citizens' and 'acquits the innocent'. Accordingly, the government might think about proposing reforms that would counter the causes of the thousands of routine wrongful criminal convictions that occur each year under the present criminal justice system. These (still) include misdirection by judges which is the most common cause of routine successful appeals; unreliable confessions such as in the cases of Robert Downing, the Cardiff Newsagent three, Andrew Evans, and King and Waugh who between them spent almost a century of wrongful imprisonment based on the unreliable confessions of the vulnerable.
Financial and other incentives which created unreliable 'cell confession evidence' that featured most recently in the case of Reg Dudley and Robert Maynard who each served over 20 years of wrongful imprisonment as a consequence of a 'bargain' between the police and an informant who received a reduced sentence for his part in a robbery in exchange for the necessary evidence for conviction; non-disclosure of vital evidence as in the case of John Kamara who also spent 20 years of wrongful imprisonment because over 200 statements were withheld from his defence team; malicious accusations such as in the case of Roy Burnett who spent 15 years of wrongful imprisonment for a rape that the Court of Appeal said 'almost certainly never happened', or Roger Beardmore who spent three years in prison (of a nine year sentence) for the paedophile rape of a young girl who later admitted that she had lied to get her mother's attention; badly conducted defences such as in the case of Mark Day who was convicted for murder with two others despite the fact that he did not know his co-defendants, a fact that his defence failed to bring to the court's attention; and, 'racism' such as in the case of the M25 three, the case in which three black men were wrongly imprisoned for 10 years despite the fact that witnesses had claimed that two of the offenders were white and four of six victims had referred to at least one of the offenders as white. And this is by no means exhaustive list of the causes of injustice.
When thinking about proposing reforms of the criminal justice system to reduce the conviction of the innocent it might also be pertinent to include some of the possible causes of miscarriages of justice that might never feature in the official statistics of successful appeals. Likely candidates include the 'time loss rule', under which when the wrongly imprisoned apply for an appeal they are advised that if their appeal is ultimately unsuccessful it could result in substantial increases to their sentence. The effect of this is to transform what was intended as a minor check on groundless applications into a major barrier in some meritorious cases. There are also the miscarriages of justice that can result from charge, plea and sentence 'bargaining' and the 'parole deal'. All of these induce innocent people to plead guilty to criminal offences that they have not committed and present a 'dark figure' of miscarriages of justice that can never be fully quantified.
It is clear that the present system of criminal justice is, indeed, in urgent need of reform. But this should not be in the direction of a relaxation of the system in favour of obtaining more guilty verdicts and convicting more people. Rather, the present system needs to a reformed in the direction of 're-balancing' it with its stated aims, namely, to safeguard against convicting of the innocent. The present system makes far too many mistakes. Convicting more of those brought to trial will undoubtedly mean making even more mistakes and convicting even more innocent victims.
Michael Naughton is a postgraduate researcher looking at the harmful consequences of miscarriages of justice in the Department of Sociology, University of Bristol.
Send us your views
Email Observer site editor Sunder Katwala at observer@guardianunlimited.co.uk with comments on articles or ideas for future pieces. You can write to the author of this piece at M.Naughton@Bristol.ac.uk.
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The Observer website carries additional online commentary each week, with articles responding to recent pieces and offering additional coverage of the major issues. Please get in touch if you would like to offer a piece and see Observer Comment for this week's pieces. Online commentaries are also trailed in the print pages of the newspaper.
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