WPIC 35.50 Assault—Definition

Use this general definition with any instruction that refers to assault.

Use the first bracketed definition in cases involving a battery whether accompanied or unaccompanied by an apprehension or fear of bodily injury on the part of the victim. Use the bracketed sentence of this paragraph, if it is necessary to define “offensive” for the jury. See Comment.

Use the second bracketed definition in cases involving an attempt to inflict bodily injury but not resulting in a battery. The inner bracketed sentence should be used if there is a factual issue as to the extent of the act committed, i.e., whether it constituted mere preparation or had progressed far enough to constitute an attempt, or if there is a factual issue as to the existence of an apparent present ability to inflict bodily injury.

Use the third bracketed definition in cases in which there is evidence that the actor's intent was not to inflict bodily injury but only to create the apprehension or fear of bodily injury in the victim. Use WPIC 5.01 (Direct and Circumstantial Evidence) with this instruction if this paragraph is given. See the Comment below.

Use the fourth bracketed paragraph relating to consent if there is an issue whether the victim consented to the defendant's act and the act is not otherwise a breach of the peace.

If the charge necessitates use of more than one paragraph of this instruction, the bracketed word “also” should be used as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

Along with this instruction, use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 2.03 (Bodily Injury—Physical Injury—Definition).

Include the phrase “with unlawful force” if there is a claim of self-defense or other lawful use of force.

The term “assault” is not defined in the criminal code. Courts use common law to define the term. State v. Krup, 36 Wn.App. 454, 457, 676 P.2d 507 (1984); Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942). 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. State v. Hupe, 50 Wn.App. 277, 282, 748 P.2d 263 (1988), disapproved of on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007). Accord, State v. Madarash, 116 Wn.App. 500, 513, 66 P.3d 682 (2003). State v. Hupe, 50 Wn.App. 277, 748 P.2d 263 (1988), contains an extended review of cases defining the term “assault.”

In State v. Smith, 159 Wn.2d 778, 786–90, 154 P.3d 873 (2007), the Washington Supreme Court, in an extensive discussion, clarified prior ambiguity in the case law and held that substantial evidence is not required to support each of the three definitions contained in WPIC 35.50. Accord, State v. Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009). In reaching its decision, the Smith court disapproved of State v. Rivas, 97 Wn.App. 349, 984 P.2d 432 (1999), which was discussed in the prior Comment to this instruction.

Although use of multiple definitions of assault does not implicate jury unanimity, the WPI Committee recommends that only those options supported by evidence presented at trial be used to avoid possible juror confusion.

Definition of assault—battery. The first paragraph of the instruction defines assault by battery. See State v. Madarash, 116 Wn.App. 500, 513, 66 P.3d 682 (2003). The definition of “offensive” in the first paragraph is adapted from section 19 of the Restatement (Second) of Torts. Section 19 states that “a bodily contact is offensive if it offends a reasonable sense of personal dignity.” Comment (a) to section 19 states:

Definition of assault—attempted battery. The second paragraph is based on the common law definition of an assault as an attempted battery. The common law definition is an attempt to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented. State v. Rush, 14 Wn.2d 138, 139, 127 P.2d 411 (1942); State v. Stewart, 73 Wn.2d 701, 703, 440 P.2d 815 (1968). The actual existence of a state of apprehension or fear in the person assaulted is not an element of the crime of second degree assault. State v. Stewart, 73 Wn.2d at 704–05; State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073 (1972).

Definition of assault—common law assault. The third paragraph defines the crime of “common law assault,” which consists of an act undertaken with the intent to cause fear and apprehension of injury. State v. Rivas, 97 Wn.App. 349, 984 P.2d 432 (1999), disapproved of on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007); State v. Bland, 71 Wn.App. 345, 860 P.2d 1046 (1993), disapproved of on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007). Specific intent to create reasonable fear and apprehension of bodily injury is required, and the jury must be so instructed. State v. Eastmond, 129 Wn.2d 497, 919 P.2d 577 (1996) (overruled on other grounds by State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002)). See also State v. Byrd, 125 Wn.2d 707, 887 P.2d 396 (1995).

In Bland, there was insufficient evidence of actual reasonable apprehension and fear by the victim to support the third alternative means, intentional creation of apprehension and fear, when the victim was sleeping in his living room until the defendant's shot from the street went over his head, covering him with broken glass. According to the court, there was no evidence that the victim had a “fear about the future; a presentiment of danger.” State v. Bland, 71 Wn.App. at 356. This does not mean that the victim's fear of future harm must occur before the act which constitutes the assault, however. State v. Ratliff, 77 Wn.App. 522, 892 P.2d 118 (1995) (sufficient evidence of victim's reasonable fear of future harm when defendant threw urine which entered his eyes, ears, and mouth). Under this alternative, it must be established that the defendant committed “an intentional act, directed at another person.” State v. Karp, 69 Wn.App. 369, 848 P.2d 1304 (1993) (distinguishing the general menacing behavior sufficient for violation of the unlawful display of a weapon statute).

Unlawful use of force. The phrase “with unlawful force” has been bracketed in all three paragraphs. The definition of “assault” includes the requirement that it be committed with unlawful force. See, e.g., State v. Hupe, 50 Wn.App. 277, 748 P.2d 263 (1988), disapproved of on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007); State v. Krup, 36 Wn.App. 454, 676 P.2d 507 (1984). In another context, however, the court has criticized jury instructions that used the term “unlawful” without defining it. See State v. Hardy, 44 Wn.App. 477, 722 P.2d 872 (1986) (aggressor instruction for second degree murder); State v. Arthur, 42 Wn.App. 120, 708 P.2d 1230 (1985) (aggressor instruction for second degree assault). If there is a claim of self-defense or other lawful use of force, the instruction on that defense will define the term “lawful.” If there is no such evidence, the jury should not be left to speculate on what might constitute “lawful” conduct. See State v. Calvin, 176 Wn.App. 1, 316 P.3d 496 (2013) review granted on other grounds and remanded for further proceedings, 183 Wn.2d 1013 (2015).

In State v. Cardenas-Flores, 189 Wn.2d 243, 401 P.3d 19 (2017), the Washington Supreme Court held that it was not error to fail to include “with unlawful force” in the definition of second degree assault of a child when the state had charged a parent with having committed second degree assault by intentionally assaulting the child and “recklessly” inflicting substantial bodily harm. The Court went on to note that including such language “may have confused jurors,” given that the defendant denied even touching the child. State v. Cardenas-Flores, 189 Wn.2d at 267.

Consent. In State v. Garcia, 20 Wn.App. 401, 579 P.2d 1034 (1978), the court defined an assault as “an attempt to commit a battery, which is an unlawful touching; a touching may be unlawful because it was neither legally consented to nor otherwise privileged, and was either harmful or offensive.” State v. Garcia, 20 Wn.App. at 403; also see State v. Humphries, 21 Wn.App. 405, 408, 586 P.2d 130 (1978). However, an individual cannot consent to an assault if the activity consented to is against public policy or is a breach of the peace. State v. Hiott, 97 Wn.App. 825, 828, 987 P.2d 135 (1999) (a juvenile could not consent to a game in which the victim and defendant were shooting each other with BB guns). Thus, the circumstances in which the jury is properly instructed regarding the defense of consent are rather limited, outside the context of a sexual assault.

The court in State v. Shelley, 85 Wn.App. 24, 929 P.2d 489 (1997), held that consent is a defense to an assault occurring during an athletic contest when the conduct was reasonably foreseeable to the participants, regardless of whether the conduct was permitted by the rules of the athletic event. However, in Shelley, the defendant was not entitled to argue consent when he broke the victim's jaw throwing a punch over a disagreement that occurred in the course of a basketball game.