The DC Court of Appeals in Hernandez v. U.S., in overturning an assault conviction provided much needed clarity and definition to the current DC Assault Statute.

Section 22-404 of the statute provides two forms of assault:

(a)(1) Whoever unlawfully assaults, or threatens another in a menacing manner, shall be fined and or be imprisoned not more than 180 days, or both.

(2) Whoever unlawfully assaults, or threatens another in a menacing manner, and intentionally, knowingly, or recklessly causes significant bodily injury to another shall be fined or be imprisoned not more than 3 years, or both. Significant bodily injury means: an injury that requires hospitalization or immediate medical attention.

Subsection(a)(1) which is generally referred to as simple assault in DC is broad and essentially makes all forms of unwanted touching an assault under the statute.

Here, Herndandez and the complainant had got into an argument over a soccer match, and the complainant was irritated that Hernandez had touched his arms while discussing the match.  The complainant had warned the defendant not to touch his arm again, and after the defendant touched the complainant again a scuffle had ensured.

The trial court had held that the initial touching of the arm by the defendant as unwanted constituted an assault even though it was not forceful or violent.   The Court of Appeals disagreed holding that a mere touch of the arm as here without more is not criminal and would not fall under the statute.

The essential elements of simple assault as codified by the caselaw are that the government must prove that defendant:

1. With force or violence, injured or attempted or tried to injure the complainant, the actus reus element;
2. Intended to use force or violence against the complainant, the mens rea; and
3. Had the apparent ability to injure the complainant at the time.

Specifically, the Court of Appeals considered whether the single act of touching someone on the arm after being asked not to do so amounts to an attempted battery or simple assault. The Court held that a touch is inherently neither “forceful” nor “violent” and thus cannot without more establish an assault.

In justifying its reasoning, the Court further expounded:

• The facts of this case—touching the arm of a friend who did not want to be touched—do not cry out to us as demonstrating a need to recognize a new type of simple assault crime.
• The government did not provide any authority that establishing a nonviolent, non-forceful touch would have amounted to assault.  We cannot criminalize a nonviolent, non-forceful, disagreeable touch.
• Attempted-battery assault requires proof of an act with force or violence.
• Unwanted touch, without force or violence, is not generally considered a criminally assaultive act.

Refer to our Washington DC Assault Lawyer page for more information on this topic.