Grading Simple Assault

Grading Simple Assault

Once the working parts of paragraph (c) are satisfied, the remaining question is how serious a crime the actor has committed. The closing sentence of § 211.1(1) supplies the answer: simple assault is a misdemeanor, unless it is committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.¹ That sentence comes after paragraph (c), yet it speaks of simple assault as a whole, so it grades attempted injury under paragraph (a), negligent injury with a deadly weapon under paragraph (b), and menace under paragraph (c) in the same way.² The grade therefore does not change with the paragraph the prosecutor proves. It changes with two questions: whether the conduct is simple assault at all rather than aggravated assault, and, if it is simple assault, whether it happened in a fight entered into by mutual consent.

The misdemeanor baseline tracks what menace puts at stake. An actor who only tries to frighten attempts no injury and causes none, so the harm in the case is the victim's fear. The Code reserves its felony grades for conduct aimed at serious injury or at injury with a deadly weapon, which are the situations in which the body itself is in danger. Aggravated assault under § 211.1(2)(a), an attempt to cause serious bodily injury or the causing of it with extreme indifference to the value of human life, is a felony of the second degree, and aggravated assault under paragraph (2)(b), an attempt to cause or the purposeful or knowing causing of bodily injury with a deadly weapon, is a felony of the third degree.³ Each of those paragraphs rests on injury or an injury aim, so menace remains in the misdemeanor range even when the actor displays a weapon.⁴

The second grading fact, the consensual fight, lowers the grade by one step. A person who agrees to fight has chosen to enter a physical contest, expects blows and threats, and is able to answer in kind. The wrong done to that person differs from the wrong of terrorizing a stranger who never agreed to any confrontation, and the Code reflects the difference by reducing the offense to a petty misdemeanor while leaving the conduct criminal.⁵ The reduction sits in subsection (1) and speaks only of simple assault. The grading sentence in subsection (2) names no comparable reduction for the aggravated paragraphs, so a participant who aims at injury with a deadly weapon in a consensual fight is analyzed under subsection (2) on the text.⁶

The words of the reduction deserve care. Students lose this issue when they treat any brawl as a consensual fight, because the sentence asks whether the encounter was entered into by mutual consent, which means both participants agreed to it.⁷ An actor who menaces an unwilling person in the middle of a street disturbance gets no reduction, since the other person never consented to the encounter.

The two scenes differ in one fact, whether the person menaced had agreed to the encounter, and that fact alone moves the grade from misdemeanor to petty misdemeanor. Grading is therefore the last step in the analysis. The elements of paragraph (c) decide whether there is a simple assault, the actor's aim decides whether an aggravated paragraph is in play, and the consensual-fight question sets the final grade. Conduct that falls outside paragraph (c) altogether, such as a threat of future violence, belongs to the neighboring offenses taken up next.