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Under Florida law, the term assault has a defined meaning that is different from the word’s common language uses. In vernacular (everyday word use), an assault can mean a military campaign, it can mean an attack or an attempted battery. Commonly, English speakers use the word assault to convey a beating, sexual assault, an attack and a fight. The term assault in the criminal code does not cover all that ground, it is a closely defined term when used as a penal or criminal code and it is different from a battery.

As a basic understanding, the word battery in law means any unlawful touching. By example, if I extend my hand to greet someone and they respond by taking my hand and shaking it, then that act is a permitted or assented touching and is not a battery. When I am touched without my permission it is a battery. Think in the realm that any unlawful or not permitted touching is a battery, not an assault. The term assault is when someone by action, word, or behavior places someone in fear of a battery (an unlawful touching). Any act that is threatening and causes a person to have a reasonable fear of an unlawful touching is part of but not a completed assault. The person committing the assault must have the apparent ability to cause harm, it must be imminent, not sometime in the future, and the “victim” must be in actual fear of the unlawful touching. Again the word reasonable must be applied but only in the perspective of the “victim.” If the “victim” of an assault is in fact not in fear then that element of an assault is missing and the law does not recognize the situation as an assault. It can be an attempted assault, or it can be an attempted battery but it is not in fact a criminal assault.

In Florida, the criminal statutes defining assault are listed under Chapter 784, Fla. Stat., § 784, Fla. Stat., has many aspects and many fact specific varieties. A simple assault is best understood by reading the Florida Standard Jury Instructions (Criminal), 8.1, Assault § 784.011, Fla. Stat., which defines “Assault” for juries as an intentional and unlawful threat, by word or act, to do violence to the “victim.” This Jury Instruction has two additional elements which must be proven beyond a reasonable doubt before a jury can lawfully find an assault. Those necessary additional elements of proof are:

  1. That at the time of the assault the perpetrator appeared to have the ability to carry out the threat; and
  2. Most importantly - That at the time of the act, the victim had a well-founded fear that the violence was about to take place. Three elements must all be proven before an assault has been committed.

Often one hears of an aggravated assault. An “aggravator” is something that enhances the act to a higher level of violence or the threat of violence. It is easily understood simply by following the Florida criminal statues that are the rules of law enforced in Florida criminal courts in Fort Lauderdale, Miami and West Palm Beach. Under reading the Florida Standard Jury Instructions (Criminal), 8.2, Aggravated Assault § 784.011, Fla. Stat., look to see what an aggravated assault with a deadly weapon, an Aggravated Assault with a Firearm and you will see that a weapon can be anything from using the pavement to threaten someone with a head-pounding on the street, to a firearm, or to something specific to a victim such as when Florida criminal laws created the crime of Aggravated Battery on a Pregnant Victim, § 784.045(1)(b).

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