Colorado law, however, considers these two words distinct from each other, and has different charges and punishments for the two crimes. To make matters even more confusing, the historical distinction of these two terms has actually been reversed under current Colorado statutes.
The Evolution of Assault and Battery
In the past, most state laws referred to assault as simply the act of making someone afraid that physical violence was imminent through physical actions or threats. For example, if you brandished a knife or swung your fist at someone in a bar, this could be considered assault, even if you never touched them.
Battery, in contrast, was the act of making contact. If you swung your fist at someone and missed, that would be assault. If you swung your fist and actually hit the person, you could be charged with battery.
Usually battery did not occur without assault, and it was less likely that victims would seek criminal justice for assault without battery. Thus, the two distinct charges were combined into one in the common lexicon. In fact, many modern statutes combine the terms into “assault and battery” as well, or refer to it simply as assault.
Colorado was one of the many places where physically striking or otherwise harming a person became known as assault. Battery, however, has curiously been adopted as the phrase to replace the previous definition of assault. Currently, making someone afraid through actions or threats is considered battery in Colorado. Officially, it is now referred to as “menacing.” Assault now involves actually making contact.
Menacing in Colorado. Under Colorado statute 18-3-206, “a person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.”
Menacing is a Class 3 misdemeanor. It is upgraded to a Class 5 felony charge, however, if you use or threaten to use a weapon. The weapon does not have to be real. For example, threatening someone with a fake gun, pretending you have a gun under your jacket, or even simply telling them “I have a gun” could earn you a felony menacing charge.
Assault in Colorado. As stated above, assault under Colorado law refers to knowingly or recklessly causing injury to someone. Individual assault charges are identified by degrees, depending on the actions taken and the effect on the victim.
Second and first degree assaults are considered crimes of violence. This means a judge must sentence the convicted person to at least half of the presumptive incarceration sentence, and no more than twice that amount of time.
For example, a second degree assault is usually charged as a Class 4 felony. For this class of felonies, the range of possible incarceration is 2 to 6 years. As a crime of violence, the mandatory minimum sentence would be 4 years of incarceration.
Third Degree Assault occurs when a knowing, reckless, or negligent act harms another person. The charge becomes Second Degree Assault when this is act is performed with a deadly weapon. First Degree Assault is the most serious classification. This is an act that causes serious bodily injury to a person with a deadly weapon. It also can refer to seriously injuring a police officer or other public servant.
The consequences of menacing and assault charges cannot be understated. If convicted of these crimes you face incarceration, steep fines, and a severely tarnished criminal record. We advise you to contact an expert criminal defense attorney as soon as possible.
About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.