How does Virginia define Assault & Battery?

If you’re facing an assault and battery here in Virginia, you need to take the charge very seriously.  Given that the charge is violent in nature, there can be devastating consequences to your life and career that you wouldn’t have even predicted.  However, upon researching Virginia assault and battery, you may be surprised to learn that the Virginia Code doesn’t even specifically define assault and battery.

What does the Virginia Code say?

Under Virginia Code Section 18.2-57, the Code simply defines the punishment range for various types of assault. Indeed, simple assault and battery is a Class I Misdemeanor that carries up to a $2,500 fine and up to a year in jail.

So, how am I supposed to know what Assault and Battery is in Virginia?

Virginia defines assault and battery by what we call “Common Law,” which is a series of court decisions over the years that tell us what it is.  In Virginia, that Common Law has been distilled into our Virginia Model Jury Instructions. 

The VMJI define assault as:

“An overt act intended to do bodily harm to another together with the present ability to cause such harm” or “an overt act intended to place a person in fear or apprehension of bodily harm that creates in him or her a reasonable fear or apprehension.

VMJI 37.350

Further the VMJI defines battery as:

“The willful touching of another, without legal excuse or justification, done in an angry, rude, insulting, or vengeful manner.”

VMJI 37.300

In reviewing these rules, the Court of Appeals in Parish v. Commonwealth, 56 Va. App. 324 (2010) summarized assault and battery in Virginia:

Code § 18.2–57 provides that “any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor.” Because Code § 18.2–57 does not define assault or battery, we must look to the common law definition of the terms. The crime of assault and the crime of battery are independent criminal acts, although they are linked in Code § 18.2–57.

To sustain a conviction for assault, the Commonwealth must prove “ ‘an attempt or offer, with force and violence, to do some bodily hurt to another.’ The attempt or offer to do bodily harm “occurs when an assailant engages in an overt act intended to inflict bodily harm [while he] has the present ability to inflict such harm or [the assailant] engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim.”

…“[B]ecause assault requires an overt act, words alone are never sufficient to constitute an assault.”

To sustain a conviction for battery, the Commonwealth must prove a “wil [l]ful or unlawful touching” of another. It is not necessary that the touching “result in injury to the [victim’s] corporeal person. It is sufficient if it does injury to the [victim’s] mind or feelings.”

Parish v. Commonwealth, 56 Va. App. 324 (2010) (Internal Citations Omitted).

Given the above, here’s some things to think about if you’re charged with an assault and battery:

No injury is required.

The Complainant is not required to allege that you injured them.  That means simply because there’s no bruising or blood doesn’t mean you’re in the clear.  A push or a shove alone may be enough.

For an assault, no touching is actually required.

Indeed, when it comes to an assault, no touching is even required.  Therefore, allegations such as you threw an item at the complainant are common allegations that we see in court.  However, the VMJI also include that “words alone can never amount to an assault of any kind.

What if I’m innocent?

Just to be clear, simply because someone has accused you of a crime doesn’t mean you’re guilty.  Under the Virginia and US Constitutions, you have to be proved guilty “beyond a reasonable doubt.”  While the complainant, if a trial occurs, will tell their side of the store, you’ll have a right to cross examine that individual as well as testify yourself.

If you’re charged with an assault and battery, we’d highly recommend you speak to and retain an attorney to defend you.  If you can’t afford one, seek a Court Appointed lawyer.

Make sure to preserve any and all evidence you have. While every case is different, video and photographic evidence, texts messages or other communications with the complainant, that would discredit their allegations are key.

Of course, if you have witnesses, obtain their information too.  If you have an attorney, this evidence will be vital in helping them do their job.

What if I was defending myself?

Self-defense is indeed a defense to assault and battery in Virginia.  Indeed, A person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault.  However, the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat. Foster v. Comm, 13 Va. App. 380 (1991)( Court erred by not granted self-defense instruction where inmate used struck another inmate with a horshoe in anticipate of a fight.) However, one can’t use self-defense when he himself was the aggressor. Sims v. Comm, 143 Va. 736 (1922).

What if they wanted to fight?

In Virginia, we use the term “mutual combat.”  While mutual combat has not been explicitly recognized as a defense to simple assault and battery, the concept was employed to reduce a murder charge to manslaughter in Harper v. Comm, 165 Va. 816 (1936), as discussed in Bilal v. Comm, 2002 WL 31817987(Court of Appeals December 17, 2002).  There, the court indicated that to be mutual combat, it must have been voluntarily and mutually entered into.  If this were not so, every fight would be mutual combat, without regard to the manner in which it began.

Worred there’s a warrant for Assault & Battery outstanding for you?

Check out an article we’ve previously written. This will provide you some important things to think about when considering what you should do next.

Are you facing a Virginia Assault & Battery Charge?

Abrenio Law defense Virginia Asssault & Battery charges across all of Northern Virginia. While our main office is located in Fairfax, James Abrenio has tried assault cases across multiple jurisidictions to include:

  • Alexandria
  • Arlington
  • Fairfax
  • Loudoun
  • Prince William

James has even tried an assault and battery charge in Charlottesville related to Unite the Right, which recieved national attention. Make sure to reach out to us for your Free Consultation at Ph. 703-570-4180. You can also email James directly at To learn more about James, Click here. Also make sure to check out Abrenio Law’s YouTube Channel where we’ve shot a lot of videos related to Virginia criminal and personal injury law.