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Getting convicted for assault without even raising a hand or fist

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In the courts where I practice criminal defense, even giving an unwanted hug is an assault. That is additional testimony to the wisdom of bowing to others to greet them, apart from the reduced risk of catching swine flu (or mucus, if the person recently sneezed into the right hand), but I digress.

Geneva Clark was more than angry that her son’s school bus driver successfully recommended that his Henrico County, Virginia, school remove his bus privileges, at least temporarily. Ms. Clark’s anger may have gone beyond standing up for her son’s rights and dignity, to being frustrated about how he was going to get to and from school, at least if he was not a safe or close enough walk from the school. She acted unwisely, as further detailed below, but her actions should not have merited an assault conviction.

After her son’s bus expulsion, Ms. Clark one morning arrived at the school’s bus parking area, allegedly parking her car to make it hard for the other buses to easily depart after arriving, walked towards the bus that her son would have been on that morning had he not been ejected, and said: “’I told you I’m going to get you, bitch, don’t care, I don’t care where you at, if you’re on the school ground, if you’re in the school, or you’re in the grocery store,’ ‘[I’m going to] [f]**k you up.’"  Clark v. Virginia, ___ Va. App. ___ (May 12, 2009). Ms. Clark allegedly repeated similar actions the same afternoon when it was time for the buses to pick up the students. Understandably, the bus driver was scared, at the very least.

Convicted of assault by Circuit Court bench trial for the foregoing actions, Ms. Clark successfully appealed her conviction, with a 2-1 Virginia Court of Appeals panel ruling that the facts were insufficient to find an overt act that would enable an assault conviction. The Court of Appeals reconsidered the case en banc and reversed. The court paid lip service to the fact that words alone cannot constitute an assault, but proceeded to give the trial judge the benefit of the doubt that maybe the trial judge had concluded that Ms. Clark intentionally and successfully blocked the buses (rather than just getting there on time to get her message to the bus driver) and stood menacingly close to the bus. The en banc court opinion distinguishes another appellate opinion that reversed an assault conviction for similar behavior towards police conducting an investigation in that the police went to the defendant’s home as opposed, finding it important that the defendant never sought out the police. 

Praised be the three dissenters from the en banc opinion in Clark. They did not buy that the facts — even when viewed in the light most favorable to the prosecution — presented an overt act that would have permitted a conviction.

Beyond Clark‘s application to overt acts, the opinion confirms that in Virginia, the definition of assault is the same for both criminal prosecutions and civil tort actions.

Back to my discussion of bowing at the beginning of this blogpost. Imagine how many fewer arrests, prosecutions, and lawsuits there would be if the West borrowed the practice in Japan and elsewhere of respectfully bowing to each other. Had Ms. Clark done so, more diplomatic words may have followed. In any event, I still disagree with the en banc Clark opinion.