Assault & Battery

What is assault in Washington?
The term “assault” is not defined in the criminal code. Courts use common law to define the term. See State v. Krup, 36 Wn.App. 454, 457, 676 P.2d 507 (1984). Three definitions of assault have been recognized by Washington courts:

1. an attempt, with unlawful force, to inflict bodily injury upon another;
2. an unlawful touching with criminal intent; and
3. putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm.

See State v. Hupe, 50 Wn.App. 277, 282, 748 P.2d 263 (1988). Washington does not use the term “battery” separately from assault. Rather, it is included in the definition of an assault.

The Washington Supreme Court has approved a jury instruction that provides a general definition for juries to consider which simplifies the definitions above as follows:

With regard to an attempt to inflict bodily injury upon another, the Washington jury instruction provides that an assault is an act, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

With regard to the unlawful touching with criminal intent, the Washington jury instruction provides that an assault is an intentional touching that is harmful or offensive regardless of whether any physical injury is done to the person. A touching is offensive if the touching would offend an ordinary person who is not unduly sensitive.

With regard to putting another in apprehension of harm, the Washington jury instruction provides that an assault is an act, done with the intent to create in another a reasonable apprehension and imminent fear of bodily injury, even though the actor did not actually intend to inflict bodily injury.

How does Washington classify assault?
There are four classifications of assault in Washington: first degree, second degree, third degree, and fourth degree.

Assault in the First Degree:
RCW 9A.36.011 provides that a person is guilty of Assault in the First Degree if, with intent to inflict great bodily harm, he or she:

• Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
• Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or
• Assaults another and inflicts great bodily harm.

Assault in the First Degree is a class A felony. Assault in the First Degree is a “strike” offense for purposes of the “three-strikes” or persistent offender law.

Assault in the Second Degree:
RCW 9A.36.021 provides that a person is guilty of Assault in the Second Degree if he or she under circumstances not amounting to assault in the first degree:

• Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
• Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or
• Assaults another with a deadly weapon; or
• With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
• With intent to commit a felony, assaults another; or
• Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or
• Assaults another by strangulation or suffocation.

Assault in the Second Degree is a class B felony. However, Assault in the Second Degree with a finding of sexual motivation is a class A felony. Assault in the Second Degree is also a “strike” offense for purposes of the “three-strikes” or persistent offender law.

Assault in the Third Degree:
RCW 9A.36.031 provides that a person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:

• With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself, herself, or another person, assaults another; or
• Assaults a person employed as a transit operator or driver, the immediate supervisor of a transit operator or driver, a mechanic, or a security officer, by a public or private transit company or a contracted transit service provider, while that person is performing his or her official duties at the time of the assault; or
• Assaults a school bus driver, the immediate supervisor of a driver, a mechanic, or a security officer, employed by a school district transportation service or a private company under contract for transportation services with a school district, while the person is performing his or her official duties at the time of the assault; or
• With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm; or
• Assaults a firefighter or other employee of a fire department, county fire marshal’s office, county fire prevention bureau, or fire protection district who was performing his or her official duties at the time of the assault; or
• With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering; or
• Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault; or
• Assaults a peace officer with a projectile stun gun; or
• Assaults a nurse, physician, or health care provider who was performing his or her nursing or health care duties at the time of the assault; or
• Assaults a judicial officer, court-related employee, county clerk, or county clerk’s employee, while that person is performing his or her official duties at the time of the assault or as a result of that person’s employment within the judicial system. For purposes of this subsection, “court-related employee” includes bailiffs, court reporters, judicial assistants, court managers, court managers’ employees, and any other employee, regardless of title, who is engaged in equivalent functions; or
• Assaults a person located in a courtroom, jury room, judge’s chamber, or any waiting area or corridor immediately adjacent to a courtroom, jury room, or judge’s chamber. This section shall apply only: (i) During the times when a courtroom, jury room, or judge’s chamber is being used for judicial purposes during court proceedings; and (ii) if signage was posted in compliance with RCW 2.28.200 at the time of the assault.

Assault in the Third Degree is a class C felony.

Assault in the Fourth Degree:
RCW 9A.36.041 provides that a person is guilty of Assault in the Fourth Degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.

Assault in the Fourth Degree is a generally a gross misdemeanor, however, under some circumstances, it can be a class C felony.

Specifically, assault in the fourth degree, where domestic violence was pleaded and proven after July 23, 2017, is a class C felony if the person has two or more prior adult convictions within ten years for any of the following offenses where domestic violence as defined in RCW 9.94A.030 was pleaded and proven after July 23, 2017:

• Repetitive domestic violence offense as defined in RCW 9.94A.030;
• Crime of harassment as defined by RCW 9A.46.060;
• Assault in the third degree;
• Assault in the second degree;
• Assault in the first degree; or
• An out-of-state comparable offense