Is “pushing” someone an assault? A defense lawyer explains

You shoved someone after a heated exchange of words. The other person told a police officer, and you are now facing an assault charge. Can this really be true?

It depends on the jurisdiction. Many states say that assault is an act just short of making actual physical contact with someone. You commit the crime by merely doing something that causes a person to reasonably fear an attack or physical harm.

In these states, pushing someone would be classified as a battery as opposed to the crime of assault.

But other states say that assault involves the actual touching of a person with the intent to injure or provoke the person. These states would say that pushing someone is an assault.

1. Can you commit an assault without touching someone?

The assault laws of some states say that you can face a charge of assault even without touching someone.

These states typically say that you commit criminal assault when:

1. You attempt or threaten to injure a “victim,”
2. You have the present ability to harm the alleged victim, and
3. Your acts would leave a reasonable person to fear an attack or some type of physical harm.¹

Assault cases in these jurisdictions could involve you:

• throwing a rock at another person,
• taking a swing at someone without landing the punch, and
• shouting at a person in a violent manner.

Note that these states make a clear distinction between the crimes of assault and battery. While assault does not necessarily involve touching someone, you commit battery if you:

1. touch someone or apply force to a person, and
2. do so without any justification or excuse.²

In these jurisdictions, assault is like an attempted battery, and a simple battery is like a completed assault.

These states would also say that pushing someone would result in a battery charge as opposed to an assault charge. But you could be guilty of an assault if you threatened to push someone.

2. Do some states blend assault with battery?

Yes, many states no longer make a distinction between assault and battery.

These states say that any offensive touching is an assault.

For example, under Arizona’s criminal laws, you are guilty of assault if you:

1. intentionally, knowingly, or recklessly cause any personal injury to another person,
2. intentionally place another person in reasonable apprehension of harm, or
3. knowingly touch another person with the intent to injure, insult or provoke that person.³

In these jurisdictions, shoving a person would qualify as an assault.

3. What is the difference between simple and aggravated assault?

Many jurisdictions make a distinction between:

• simple assault, and
• aggravated assault.

“Simple assault” generally follows the above discussion. It can include either:

• an attempt to harm someone, or
• making offensive contact with a person.

In contrast, “aggravated assault” is where you commit assault and do so either:

• with the intent to commit another crime, or
• under circumstances of outrage or cruelty.⁴

Examples of aggravated assault include an:

• assault with a deadly weapon,
• assault with an intent to cause great bodily injury or disfigurement, and
• assault against a law enforcement officer.⁵

Most states say that simple assault is a misdemeanor that is punishable by:

• county jail time, and/or
• a fine.

But note that aggravated assault can lead to felony charges. A felony conviction can lead to:

• custody in state prison, and/or
• significant fines.

4. Should you contact a criminal defense attorney?

Yes. You should seek legal advice from a criminal defense lawyer or law firm if you are facing an assault charge.

A defense attorney can assist by:

• helping you get out of custody following an arrest,
• working with a prosecutor to reach a favorable plea agreement,
• representing you at court hearings,
• ensuring you keep a clean criminal record, and
• finding a legal defense to contest your criminal charges.

As to the latter, note that a few common defenses in assault cases include a defense lawyer showing that:

• you acted in self defense or in defense of others,
• the “victim’s” fear was not reasonable, and/or
• you were falsely accused.

In our experience as criminal defense attorneys, defendants are more likely to raise an effective legal defense when represented by a skilled criminal lawyer.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Aggravated Battery – The Fist or Teeth as a Dangerous Weapon – Louisiana Law Review.
• Territorial Aggression – Expanding California’s Penal Code Regarding Assault and Battery of Code Enforcement Officers – McGeorge Law Review.
• What’s Reasonable: Self-Defense and Mistake in Criminal and Tort Law – Lewis & Clark Law Review.
• Not So Simple: How Simple Assault and Battery Became Distorted in the Context of Crimes Involving Moral Turpitude – Washburn Law Journal.
• Assault and Battery – Injury Sustained in Prize Fight – Consent as a Bar to Civil Liability – Vanderbilt Law Review.