On January 19, 2018, Rene Boucher was charged with felony assault for attacking his neighbor, U.S. Senator Rand Paul (R-KY). The charge, brought under a federal law that covers personal injury attacks on members of Congress, superseded an earlier charge of fourth-degree misdemeanor assault, brought by the state of Kentucky. Which begs the question: What’s the difference between felony and misdemeanor assault? The same sorts of questions arise as we ponder when assault becomes aggravated assault, and what determines whether a crime is a first-degree or lesser offense?
Defining the crime
“Each state in the US has its own criminal law, passed by its own legislature,” explains Illinois attorney and retired judge . “In addition, there is a federal criminal law, enacted by the Congress.” Thus, as in Boucher’s case, the same act can result in both state and federal charges, and although it rarely happens, a defendant can be tried on both the state and federal charges. Double jeopardy does not apply, since the defendant is charged with two separate crimes.
At both the state and federal levels, a crime is classified as a felony or a misdemeanor – sometimes with different degrees – to punish the crime accordingly, explains Florida criminal defense attorney and former prosecutor Sasha Shulman. Misdemeanors, as their name implies, are less serious offenses and carry less severe punishments – in most instances, the maximum jail time is 12 months. Felonies are serious crimes and are punishable by lengthy prison terms or even death.
By definition, assault is a threat or attempt to inflict offensive physical contact or bodily harm on a person that puts the person in immediate danger of or in apprehension of such harm or contact. Aggravated assault, by comparison, is more serious than a common assault. In Florida, for example, assault is a misdemeanor offense, while aggravated assault is a third-degree felony.
Shulman explains it hypothetically: If police are called out to a domestic fight, and the victim says, “Sam threatened to punch me, raised his fist, and ran at me,” then Sam would be arrested for assault. The police report is turned over to the prosecutor for review. The assigned prosecutor (or in some states, a grand jury) reviews the evidence to determine what charges should move forward.
From assault to aggravated assault
If the victim’s statement included, “Sam raised his fist, came at me, and also picked up a gun and pointed it at me,” then the prosecutor or grand jury might escalate the charge to felony aggravated assault.
“To put it simply, these distinctions exist in order to apply penalties that are commensurate with a given crime,” says author Lawrence A. Kane, who has published 17 books on violence in society. He explains that, unlike some disputes, aggravated assault is the result of a predatory offense for which violence is the goal.
“Generally, states pass ‘aggravated’ laws to increase the punishment,” says Shiffman, who notes that an assault “can become aggravated by use of a gun or deadly weapon. It can also become aggravated by the victim being a police officer or government worker.”
In most states, a first-degree crime is the most serious, followed by second-, then third-, then sometimes fourth-degree designations. Some states use the term “aggravated” in lieu of a “degree” descriptor. And in Shulman’s experience, a second-degree felony is typically punishable by a maximum of 15 years, while a first-degree felony can carry a sentence of 30 years or life, depending on the nature of the charge.
An individual who has been assaulted – or who has committed an assault – is advised to consult with an attorney in his or her jurisdiction.