By Legal disclaimer: This article explains general legal concepts and is not legal advice. Terminology and charging practices vary by state. If you’re facing a charge, speak with a criminal defense attorney.
Is Attempted Assault a Real Charge?
Yes, but the term is genuinely confusing, and here’s why: assault already criminalizes the threat or attempt of harmful contact. You don’t need contact to complete the crime of assault. So “attempted assault” isn’t a separate offense layered on top of assault the way “attempted murder” is layered on top of murder; in most states, what people mean by “attempted assault” is actually just assault itself, or a specific legal theory sometimes called “attempted battery assault.”
Why the Confusion Exists: Two Legal Theories of Assault
Most states recognize assault under one or both of these frameworks:
- The “fear” theory: The defendant intentionally placed the victim in reasonable fear of imminent harmful contact. This is complete the moment the threat is made; there’s no “attempt” version because the threat itself is the crime.
- The “attempted battery” theory: The defendant took a substantial step toward causing harmful contact but failed to complete it (a punch that misses or is blocked). Some legal scholars and statutes describe this as “attempted battery,” which functions as assault under the law, even though it’s colloquially what people mean by “attempted assault.”
Because of this second theory, an unsuccessful attack one that’s stopped, missed, or blocked is still fully prosecutable as assault. There’s no separate, lesser “attempt” charge to fall back on; the failed attempt already is the completed crime of assault.
Is Attempted Assault With a Deadly Weapon Still Serious?
Yes, and this is an important point. If a weapon is involved in an unsuccessful attack (a swing that misses, a shot that doesn’t connect), the case is generally still charged at the aggravated assault level, since the weapon’s presence is what triggers the aggravating factor, independent of whether the attack succeeded. “It didn’t land” is not a defense to the severity of the charge in the way people sometimes assume.
Attempted Battery: A Related but Distinct Concept
“Attempted battery” is sometimes used as a technical label for the specific legal theory described above. An assault charge based on a failed attempt at contact, as opposed to the “fear” theory based purely on a threat. In practice, this distinction rarely changes the outcome for a defendant; both theories result in an assault charge, just supported by different facts.
Can You Go to Jail for Attempted Assault?
Yes. Because “attempted assault” functions as ordinary assault under the law, the same penalty structure applies: simple assault penalties for a lower-level incident, or aggravated assault penalties if a weapon or other aggravating factor was present. See Is Assault a Felony or Misdemeanor? for the classification rules that apply either way.
Can You Press Charges for Attempted Assault?
Yes, since it’s prosecuted as regular assault, the same reporting process applies. See How to Press Charges for the general steps, which don’t differ based on whether the incident is described as “attempted” or completed.
Frequently Asked Questions
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Is attempted assault a crime?
Yes, but it’s typically prosecuted simply as assault, since assault law already covers threats and failed attempts at contact. There’s no separate, lesser “attempt” charge in most states.
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What’s the difference between assault and attempted assault?
In most jurisdictions, there isn’t a meaningful legal difference. Both are prosecuted under the same assault statute, since assault already criminalizes the threat or attempt itself.
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Is attempted assault with a deadly weapon still a felony?
Generally yes. The weapon is what triggers the aggravating factor, regardless of whether the attempted contact actually succeeded.
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What is attempted battery?
It’s a legal theory describing assault based on a failed attempt at physical contact (a punch that misses, for example), as opposed to assault based purely on a verbal or physical threat.
Talk to an Attorney
Whether an incident is described as “attempted” or completed generally doesn’t change how seriously it’s charged. Speak with a criminal defense attorney to understand what you’re specifically facing.