I am excited to announce the release of a new guide on Defining “Injury” for North Carolina Assault and Other Offenses. Continue reading
Tag Archives: assault
Happy New Year, everyone.
Around this time last year, I blogged about the decades-long question surrounding assault in our state: when do multiple physical acts constitute one continuing assault offense and when do they constitute more than one assault offense?
At the time the blog was written, the Court of Appeals had analyzed this issue several times, but the question had never reached our state Supreme Court. The Court has since decided State v. Dew, ___ N.C. ___, 2021-NCSC-124 (Oct. 29, 2021), building on the Court of Appeals’ jurisprudence and offering clarification on the “distinct interruption” approach used in deciding these cases. This post reviews the Court’s decision in Dew and the implications it has on physical assault cases moving forward. Continue reading →
Beaten, Battered, and Bruised: Multiple Assault Offenses or a Continuing Assault Offense?
Imagine a case of domestic violence in which the perpetrator physically and violently assaults a victim. The perpetrator punches the victim with his fist, grabs the victim by the throat and strangles her, and grabs the nearest object and hits her over the head. The victim suffers a broken jaw, black eye, and a concussion and sustains bruising to the neck.
Assuming each of these acts occurred within a short and continuous time frame, could the perpetrator be charged with multiple counts of assault or only one? Continue reading →
I have been getting several questions lately about the crime of assault by strangulation, a Class H felony under G.S. 14-32.4(b). This crime can be tricky because two of its four elements are not statutorily defined. This post explains those elements in more detail.
How Serious Is a “Serious Bodily Injury”?
Here’s a question for you: which of the following injuries is more serious?
- The victim, a police officer injured while fighting with a suspect, “sustained puncture wounds [from bites] on his left forearm and right bicep.” The officer testified that the bites were extremely painful, and they caused “severe bruising and depressions, [and] permanent scarring . . . includ[ing] a large circle on his right bicep, ‘just over a half an inch to an inch in a circle’ with a ‘large depression[,]’ and ‘a deep ridge’ on his left arm. The officer experienced loss of sleep and extreme stress [and] had to be tested multiple times for communicable diseases.”
- The victim, a six-year-old girl injured when her father “forcibly twisted” her leg until it broke, suffered a “spiral fracture” of her femur. A physician described such fractures as “incredibly painful,” and the child required morphine to control her discomfort. She was placed in traction and underwent surgery to place titanium rods in her leg. The surgery resulted in lifelong scars. The victim was in a cast for several weeks, and used a wheelchair and a walker during her recovery. She regained the full use of her leg in five to eight months, but had to repeat kindergarten as a result of missing so much school.
You can vote on the answer below. Once you have voted, read on to see how the court of appeals viewed these two scenarios.
Attempted Assault Is a Crime
Reversing the Court of Appeals, the NC Supreme Court recently held, in State v. Floyd, that attempted assault is a crime in North Carolina. Continue reading →
Is Spitting on a Person an Assault?
Several years ago, the Sixth Circuit noted the “timeless question whether “spitting a ‘lugie’ towards someone, by itself, constitutes an ‘assault.’” United States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009). I’ve been asked this question several times, and in today’s post, I set out to answer it. Continue reading →
Is Paddling a Student a Crime?
On the first day of elementary school each year, our teacher displayed her paddle, which was wooden with a short, solid handle. The paddle portion had holes drilled through its core. Most school years, someone (always a boy, in my recollection), wound up being paddled. Times have changed for most students. But because a handful of schools in North Carolina still employ corporal punishment, questions continue to arise regarding when such punishment crosses the line between permissible school discipline and unlawful assault. Continue reading →
Murder Rates and Medical Progress
The murder rate in North Carolina is falling. The same is true nationally. A recent article suggests that shootings are actually up, but deaths are down due to medical advances. At least the first part of that claim is almost certainly wrong.
The chart below illustrates the decline in murders.
The article in question is this one, from the Wall Street Journal. It is entitled In Medical Triumph, Homicides Fall Despite Soaring Gun Violence. It argues that the fall in homicides cannot be due to falling overall crime rates because “[t]he reported number of people treated for gunshot attacks from 2001 to 2011 has grown by nearly half.”
Instead, the article concludes, the decline is due to improved medical care for gunshot victims, including “the spread of hospital trauma centers—which specialize in treating severe injuries—the increased use of helicopters to ferry patients, better training of first-responders and lessons gleaned from the battlefields of Iraq and Afghanistan.”
I seriously doubt the suggestion that there’s been a 50% increase in shootings since 2001. Aggravated assaults are way down, according to FBI data. The FBI’s Uniform Crime Reporting system defines an aggravated assault as an assault “for the purpose of inflicting severe or aggravated bodily injury . . . usually accompanied by the use of a weapon or by other means likely to produce death or great bodily harm.” Here’s what FBI data show about aggravated assaults.
The decline in aggravated assaults pretty closely tracks the decline in murders. It suggests that the reduction in violent conflicts explains the fall in homicides, and casts severe doubt on the idea that more people are getting shot.
Of course, it is theoretically possible that while there are fewer aggravated assaults overall, more of them involve gunplay. But the data that claim to show a rise in shootings don’t look very solid. The data come from the National Electronic Injury Surveillance System, run by the U.S. Consumer Product Safety Commission. That data is based on a “probability sample of hospitals in the U.S.,” so it is not comprehensive. And, the data are really intended to measure “injur[ies] associated with consumer products,” not criminal activity. This adds to my skepticism that shootings are up by 50%, or that medical care has advanced so rapidly that it can more than offset a 50% rise in shootings.
None of this is to say that medical care is not improving or that it has not contributed at all to falling murder rates. In fact, the most intriguing data cited by the article suggest a modest effect. The article cites data to the effect that “[i]n 2010, 13.96% of U.S. shooting victims died, almost two percentage points lower than in 2007.” Based on my back of the envelope calculations, a fall in fatality rate from 16% to 14% would almost exactly explain the observed decline in murders from 2007 to 2010 assuming a constant number of shootings. (It would be nowhere near enough to offset the supposed 50% increase in shootings.) For the reasons given above, I doubt that the number of shootings has been constant, so I suspect that even this modest effect is probably overstated.
Medical progress, probably. Medical triumph, I doubt.
Dirty Play, or Criminal Assault?
I don’t follow professional basketball very closely, but I was absolutely stunned by a play late in a recent playoff game between the Los Angeles Lakers and the Dallas Mavericks. The Mavericks, already leading the series 3-0, were ahead by 30 points in the final quarter of the fourth game. Dallas guard Jose Barea drove to the basket, and as he rose to the rim for a layup, Lakers center Andrew Bynum came across the lane and drove his elbow into Barea’s ribcage. Cheap shot doesn’t begin to describe it. Bynum did not attempt to make a play on the ball, Barea was completely stretched out and exposed, and after Bynum’s vicious blow, Barea collapsed in a heap on the floor. You can see the video here. (For a local comparison, it was much worse than the forearm strike by Gerald Henderson that bloodied Tyler Hansbrough’s nose in 2007.)
Bynum was ejected, and I assume that the NBA will fine and suspend him. But could and should he be prosecuted criminally?
There have been a number of criminal prosecutions arising out of violent conduct during the course of sporting events. At the professional level, Todd Bertuzzi of the Vancouver Canucks was charged criminally for an in-game assault of another hockey player that left the latter with a broken neck. At the amateur level, sexual assault charges were brought last year against a high school wrestler as a result of his use of the “butt drag” against a teammate – a move in which, apparently, “you kind of penetrate the anus for just a brief period of time to prod the wrestler along to wrestle.” For a general discussion of this issue, see Jeffrey Standen, The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence, 99 J. Crim. L. & Criminology 619 (2009).
There’s a sense that players assume the risk of, and consent to, quite a bit of behavior that would otherwise be assaultive when they choose to participate in contact sports. The question is where to draw the line between rough play and criminal conduct. The only North Carolina case on point of which I’m aware is In re Johnson, 2002 WL 417012 (N.C. Ct. App. Mar. 19, 2002) (unpublished). In that case, a 13-year-old was adjudicated delinquent for assaulting a 7-year-old by pushing him to the ground during a basketball game. The court of appeals stated that “intentionally shoving a player on the ground outside the context of the game is not an accepted part of the game” and so could constitute an assault. However, it reversed the adjudication because no evidence was adduced regarding whether the push was in the course of the game or outside it, stating that “[m]inor incidents of pushing and shoving that occur during physical games are not normally subjects that should become matters of concern for our juvenile courts.”
In the end, Barea got up and seems not to have been seriously injured. That, and the fact that Bynum is likely to be punished by the NBA, persuades me that a criminal prosecution isn’t a good use of resources. But whether it would be legally justifiable is a separate question, and I’m not so sure of the answer. If you have a minute, watch the video, and then vote in the poll below.