Introduction

Assault by Physical Menace

Introduction

Ask most people to picture an assault and they describe a punch, a shove, or a swung bottle: a fist or weapon reaching someone's body. Model Penal Code § 211.1(1)(c) describes something different. It makes a person guilty of simple assault when he "attempts by physical menace to put another in fear of imminent serious bodily injury."¹ Nothing in that sentence requires contact, a wound, or even an effort to wound. What the actor must be trying to produce is fear in the victim's mind, and the means of producing it is menacing physical behavior, such as aiming a gun at someone or lunging at them with a knife. This clause is where the Code's idea of assault departs from the everyday picture of a physical attack, because the harm it punishes is the victim's fright and the actor need not have intended any injury.

Paragraph (c) is one of three alternative routes to the same offense. Section 211.1(1) opens with a single lead-in, "A person is guilty of assault if he," and then lists the routes separately.² Paragraphs (a) and (b) deal with bodily injury: the first covers attempting to cause it or causing it purposely, knowingly, or recklessly, and the second covers negligently causing it with a deadly weapon.³ Each of those paragraphs is built around harm to the body. This reading concerns only paragraph (c), where the prosecution proves a different set of facts and the victim may walk away unhurt.

The menace clause breaks into three working parts, and any menace problem can be analyzed by taking them in turn. The first is menacing physical conduct, the act that the victim perceives as a threat. The second is the actor's purpose to put the victim in fear, which the word "attempts" carries into the statute and which separates a deliberate attempt to frighten from a careless or accidental scare. The third is the object of the fear, which must be harm that is both imminent and serious. A clause built on fear invites an obvious question: why would the criminal law reach a victim's apprehension at all, when the older offense of assault required an attempt to strike? The next section answers it by tracing how assault moved from attempted battery to assault as apprehension.