On “offensive touching” assault in D.C.

The D.C. crimes code lays out a punishment but not a definition for misdemeanor assault – commonly called “simple assault” — in the District.  As a result, since the enactment of the assault statute over a hundred years ago, courts have looked to the common law when deciding what actions constitute this offense.  

(Based on centuries of jurisprudence in England and the United States, the “common law” is the body of law that is derived from judicial decisions rather than statutes or constitutions.)  

Simple assault has traditionally been characterized — in D.C. as elsewhere — as a “general intent” crime.  “General intent” crimes are distinguished from those requiring “specific intent.”  

This means that, in order to secure a conviction for this offense, the government need only prove that the defendant intended to perform the acts that constituted the offense, not that the defendant intended to hurt anyone with those actions.  

D.C. courts have grappled with this overly simplistic paradigm for  defining the offense for many years, and, short of being able to adopt the far superior approach for defining the mens rea for assault that is contained in the Model Penal Code, have made incremental progress over the years.

For example, in Williams v. United States, 887 A.2d 1000 (D.C. 2005), the D.C. Court of Appeals distinguished between throwing a shoe, as would be required under a general intent offense, and throwing a shoe with the specific intent of hitting the complainant with it.  

Only the latter act would support a conviction under the statute.  

Similarly, in Buchanan v. United States, 32 A.3d 990 (D.C. 2011), the Court rejected the government’s argument that an assault conviction could be sustained “so long as [defendant] intended the act of flailing his arms, even if he did not mean to strike the officer.”  The Court held instead that the assault conviction could only stand if the trial court found on remand that the defendant “intended to use force against the officer.”  

And now, continuing this long line of cases designed to throw light on the men rea needed to support a conviction for simple assault, is the Court’s en banc decision in Winston Perez Hernandez v. United States, 286 A.3d 990 (D.C. 2022). 

The trial court found in Perez Hernandez that the defendant “poked” the complainant somewhere on the body after having been specifically admonished not to do so.  The question for the Court of Appeals was whether this offensive touching, performed with minimal force, constituted a criminal assault.  

The Court found that it did.

The Court expressed many of the same concerns, as discussed above, with the general intent/specific intent paradigm:  “We recognize . . . that the historical categories of general intent crimes and specific intent crimes have been subject to much criticism.”

At the same time, “the absence of statutory direction does not give us latitude to design as we please. For more than a century, our common law decisions have supplied the mens rea required for the various forms of assault; we therefore do not write on a blank slate.”  

Turning to language used in the Model Penal Code, the Court held that the “touching” portion of an offensive touching” cannot be “inadvertent.”  In other words, the government must prove at least general intent to commit the acts that constituted the offense. 

Moving beyond general intent, however, the Court also held that, the “mens rea requirement for the offensiveness of a touch may be satisfied by applying the Model Penal Code concepts of purpose and knowledge.”

A person acts purposely with respect to a result of his conduct if it is ‘his conscious object . . . to cause such a result.”

A person acts knowingly with respect to a material element of an offense when “he is aware that it is practically certain that his conduct will cause such a result.”

(The Court did not take a position with respect to the third state of mind used by the Model Penal Code:  recklessness.)

Turning to the fact pattern in this case, the Court noted that Perez Hernandez did not dispute the fact that he had touched the complainant deliberately or purposely. 

Furthermore, “in the circumstances of this case, a reasonable fact-finder could conclude that the touching was offensive,” particularly when the complainant warned Perez Hernandez not to touch him because he would find it offensive”:  “Although [the trial court] did not use terms from the Model Penal Code, [it] found facts sufficient to permit the conclusion that [Perez Hernandez] knew the victim would find the contact offensive but touched him nevertheless.”  

“A touching is offensive,” the Court concluded, “if it offends a person’s reasonable sense of personal dignity . . . When the principles we have endorsed (purpose, knowledge and reasonableness) are properly applied, there is no realistic danger that a defendant will inadvertently commit an offensive touching assault.”