Malicious or Unlawful Assault in West Virginia

In West Virginia, simple assault and battery crimes are generally misdemeanors. As the crimes become more violent, the penalties increase to serious felonies. Felony assaults include malicious assault, unlawful assault, assault in the commission of a felony, strangulation, and sexual assault. This article reviews these felony-level assaults and their penalties.

What Is Malicious or Unlawful Assault in West Virginia?

A person commits malicious or unlawful assault by:

• shooting, stabbing, cutting, wounding, or otherwise causing bodily injury to another
• with intent to maim, disfigure, disable, or kill that person.

Malicious assault and unlawful assault are two different crimes in West Virginia. Their elements are identical except that harsher penalties apply when a person acts maliciously to cause harm. If there's no malice, the crime is unlawful assault.

Malice generally refers to deliberate acts done to cause the intended harm without provocation, whereas an unlawful act might occur when the person is provoked or things heat up during an argument.

Examples of Malicious or Unlawful Assault

The most straightforward examples of malicious and unlawful assault include using a weapon to harm another, whether it's a gun, switchblade, or crowbar. Other examples might include slamming someone's head onto a hard surface, pushing someone down a flight of stairs, or purposely running a vehicle into someone.

Penalties for Malicious Assault and Unlawful Assault

If a defendant assaults someone maliciously, the crime carries two to 10 years of prison time. If not, the crime falls under unlawful assault and carries one to five years of prison time or a 12-month jail sentence. It's up to a jury to decide if the defendant acted maliciously or not.

Harsher penalties apply when a defendant targets certain protected or vulnerable victims.

Protected employees. A defendant who maliciously or unlawfully assaults a protected employee while they are engaged in their official duties will face increased penalties. Protected employees include government representatives, health care workers, emergency services personnel, law enforcement officials, correctional employees, and utility and public transit workers. The penalty for malicious assault increases to 3 to 15 years of prison time, and unlawful assault against a protected employee is 2 to 5 years.

Child under 17. Maliciously assaulting a child age 16 or younger near a school or on school grounds means 5 to 15 years of prison time.

Elderly victim. Assaulting an elderly victim (age 65 or older) makes a person ineligible for probation or a suspended sentence.

(W.Va. Code §§ 61-2-9, 61-2-9b, 61-2-10b, 61-2-16a (2024).)

What Is Assault During the Commission of a Felony in West Virginia?

It's also a felony assault to shoot, stab, cut, or wound another person while committing or attempting to commit a felony. Unlike the malicious or unlawful assault described above, this crime doesn't require proof that the defendant acted maliciously or with the intent to kill, maim, disable, or disfigure the person.

An example could be stabbing someone during a burglary or while running from a botched burglary attempt. Shoving someone while running from a robbery could fall under this section if the person falls onto a concrete step and gashes their head.

This felony assault carries possible prison time of 2 to 10 years or a jail sentence of one year.

(W.Va. Code § 61-2-10 (2024).)

What Is a Strangulation Crime in West Virginia?

Assaulting someone by attempted strangulation, suffocation, or asphyxiation is a felony. This crime occurs when someone knowingly restricts another's normal breathing or blood circulation by applying pressure to their throat, neck, chest, or torso or blocking their nose or mouth. A person can be convicted under this section even if the victim suffers no visible injuries. A conviction carries one to five years of prison time and a $2,500 fine.

(W.Va. Code § 61-2-9d (2024).)

What Is Sexual Assault in West Virginia?

All sexual assaults in West Virginia are considered felonies.

Third-degree sexual assault occurs when a defendant age 16 or older engages in sex with someone younger than 16 and the age difference is four or more years. This felony carries one to five years of prison time.

Second-degree sexual assault. When a defendant forces another to engage in sexual intercourse or intrusion, the penalty carries 10 to 25 years of prison time and up to $10,000 in fines. This is sexual assault in the second degree.

First-degree sexual assault. Sexual assault involving a deadly weapon or resulting in serious bodily injuries is a first-degree offense and increases the punishment to 15 to 35 years of incarceration. The harshest penalties—25 years to life—are imposed when an adult defendant commits first-degree sexual assault against a victim younger than 12.

(W.Va. Code §§ 61-8B-1, 61-8B-3, 61-8B-4, 61-8B-5 (2024).)

Defenses to Felony Assault Charges in West Virginia

Common defenses to felony assault charges include self-defense, consent, and challenging the prosecution's case.

Self-defense. A defendant may raise a self-defense claim if the alleged victim was the original aggressor. To use this defense, a defendant can only use as much force as is reasonably necessary to stop the attack. Using deadly force against someone who slapped you, for example, is not reasonable.

Consent. Consent is a common defense in sexual assault cases. Lack of resistance, though, doesn't imply consent. There's no consent when a victim communicates their lack of consent or is too fearful to do so. When a victim is younger than 16, consent is not a defense.

Reasonable doubt. The government prosecutor must prove every element of the charges beyond a reasonable doubt. A defense attorney might argue that the prosecution didn't meet this burden in showing the requisite intent, harm, or the victim's protected status. Placing doubt in the minds of the jurors can result in an acquittal or reduced charges.

Talk to a Lawyer

If you're facing felony charges for assault, contact a criminal defense lawyer. A conviction can mean years of prison time. An attorney can help you understand the criminal process, raise defenses, and protect your rights.