Ted Lothstein and Richard Guerriero have represented many clients charged with different degrees of assault in NH's District Courts, and Superior Courts, throughout the State. In NH, we don't use the terminology "assault and battery." In some States, an "assault" refers only to a verbal assault, and the term "battery" encompasses actual physical assaults. In NH, a criminal "assault" cannot be committed without, at the very least, actual physical contact that is not "privileged" (more on that below).
Sexual Assaults are under a different set of laws. Read more about Sexual Assaults here.
Simple Assault, the least serious form of assault in NH criminal law, can be charged as a Class B or a Class A misdemeanor. The difference between the two is if the prosecution decides to charge a Class A misdemeanor, then jail time is a possibility, up to 12 months in the house of correction for each count. A fine can also be imposed, up to $2000.00 plus a 24% court fee called a "penalty assessment."
If the prosecution charges a class B misdemeanor, than the maximum penalty is a $1200 fine and, of course, a conviction would mean that the person will now have a criminal record.
The Simple Assault law generally covers assaults that don't cause serious bodily injury and that are not inflicted with any kind of weapon. The prosecution can allege either that the defendant knowingly or recklessly caused bodily injury, or the prosecution can allege that the defendant knowingly caused unprivileged physical contact.
The concept of "unprivileged" is not defined. It's generally understood to mean contact for which there was no express or implied permission, or contact that is protected under a specific law.
What if a so-called "assault" actually occurred during a mutual fight? One available defense to a Simple Assault prosecution, is the argument that the defendant is guilty only of Mutual Combat, which is a non-criminal violation. Alternatively, although this is rare, the prosecution can charge only Mutual Combat from the outset.
Second Degree Assault
NH law defines different penalties for several different kinds of felonies, but most of them are in two classes, either Class A or Class B, with Class A being the more serious.
Second Degree Assault is the second most serious type of assault. There are several different types of conduct that fall under the definition of Second-Degree Assault. First, a defendant could be guilty of Second‑Degree Assault if the prosecution proves beyond a reasonable doubt that the defendant knowingly or recklessly causes serious bodily injury to another. For this type of Second Degree Assault, the prosecution does not have to prove that the defendant used a weapon - it could be just fists, a head-butt, etc.
Alternatively, the prosecution could allege that the defendant recklessly caused bodily injury to another person by means of a deadly weapon.
Under NH law, just about any thing that could cause serious bodily injury or death, could be a deadly weapon. For example, it could be a vehicle that the defendant was driving, it could be a kitchen knife, and it could be a shoe on your foot on the defendant's foot.
Extreme Indifference, Children, Miscarriages
A defendant could commit the crime of Second Degree Assault by recklessly causing bodily injury to another person, under circumstances manifesting extreme indifference to the value of human life. For example, driving 100 miles per hour in a residential neighborhood, clipping a pedestrian, but causing only minor injuries.
There are two other ways to commit second degree assault that don't come up very often. One is to purposely or knowingly cause bodily injury to a child under 13 years old, so child abuse cases. Another is to recklessly or negligently cause injury to a woman resulting in miscarriage or still‑birth.
First Degree Assault
Apart from sexual assaults, the most serious assault that can be committed in New Hampshire is called First Degree Assault, a class A felony. Like the other levels of assault, there are several ways that this crime can be committed.
First, the prosecution can allege that the defendant purposely caused serious bodily injury to another person. Or, caused only bodily injury (not serious), but inflicted with a deadly weapon. This law also covers certain assaults to pregnant women, and assaults of children under 13 that cause serious bodily injury.
Domestic Violence and the Second Amendment
If an assault is committed against an intimate partner, family member, or household member, than the prosecution will add the words "Domestic Violence" to the charging document. Conviction of a domestic violence crime can cause the lifetime revocation of the defendant's right to bear arms, unless civil liberties are restored at a later date. This is true even if the Simple Assault is charged as a class B misdemeanor. In other words, a person could face a charge brought by the government that does not involve even the possibility of jail time, and does not give rise to a right to a court-appointed lawyer, but conviction would terminate that person's civil liberties, potentially for life.
Defenses to Assault Prosecutions
Common defenses to assault prosecutions, some of which are discussed on other pages on this website, include:
- Defense of Others
- Right of parents, guardians and teachers to inflict corporal punishment
- The contact was privileged under the law
- Jury nullification - the right of the jury to acquit even if the State proved guilt beyond a reasonable doubt - perhaps in a case where the "victim" behaved in such a way that he deserved to be assaulted!