Definition and general significance of assault
The term assault refers in legal scholarship and in common parlance to a sudden, usually aggressive attack on a person or property with the aim of overwhelming the victim or suppressing resistance. Typically, an assault involves the use or threat of violence. The term is primarily used in the context of criminal law, for example when qualifying certain offenses such as robbery and extortion with force.
Legal classification of assault
Criminal law relevance
In German criminal law, the term “assault” is not codified as an independent criminal offense, but constitutes a factual element of various offenses. Assault is particularly relevant in connection with:
- Robbery (§ 249 StGB)
- Extortion with force (§ 255 StGB)
- Dangerous interference with road traffic (§ 315b para. 3 no. 1 StGB)
- Attack on air traffic (§ 316c StGB)
Assault in robbery (§ 249 StGB)
Within the framework of § 249 StGB (robbery), violence against a person or the threat of imminent danger to life or limb is described as a central element. An assault occurs if the act is carried out unexpectedly, significantly restricting the victim’s defensive options and creating an immediate situation of compulsion.
Assault as a particularly severe case in road traffic law
According to § 315b para. 3 no. 1 StGB, committing a dangerous interference in road traffic by means of an assault constitutes a particularly severe case. The decisive factor here is that the victim is especially defenseless due to the sudden, unexpected attack.
Definition in the criminal law sense
As a rule, an assault is characterized by the following features:
- Element of surprise: Victim’s lack of preparedness
- Violence or threat of violence: Use of physical or psychological means
- Sudden, rapid execution: Swift action, so that defense becomes difficult
- Hostile intent: Purposeful conduct to the detriment of another
The precise interpretation may vary according to circumstances and depends on the specific criminal offense.
Distinction from related terms
Difference from theft and trick theft
An assault differs from theft in particular by the element of violence. Whereas in classical theft (§ 242 StGB) the perpetrator usually takes someone else’s movable property secretly and without the use of violence or threats, an assault is characterized by a sudden attack. In trick theft, on the other hand, deception is the main focus, rather than overwhelming the victim by force.
Difference from attack and bodily harm
Assault always involves an element of surprise and a certain degree of violence or threat thereof. An attack or bodily harm (§ 223 StGB) can occur without assault, for example during a confrontation without the element of surprise.
Modes of commission and manifestations
Armed assault
An armed assault occurs when weapons or dangerous instruments are used or threatened during the commission of the act. This results in increased penalties, as provided for in § 250 StGB (aggravated robbery).
Robbery-related assault
A robbery-related assault is characterized by the use or threat of violence to enforce theft or aggravated extortion. The perpetrators aim to gain a material advantage through sudden and violent acts.
Group assault and gang-related offenses
If several individuals are involved, it is referred to as a group assault or gang-related conduct. In such cases, additional aggravating circumstances apply (for example, gang theft under § 244 StGB or gang robbery under § 250 para. 1 no. 2 StGB).
Consequences and legal effects
Sentencing and determination of penalty
In connection with an assault, the Criminal Code (StGB) provides for significant penalties. The basic offense of robbery already carries a minimum sentence of one year’s imprisonment (§ 249 StGB). If weapons are used, the minimum sentence increases to three years (§ 250 para. 1 StGB), and in particularly serious cases, up to five years (§ 250 para. 2 StGB).
Possible further legal consequences
In addition to criminal prosecution, victims may have civil claims for damages or compensation for pain and suffering against the perpetrators. Furthermore, offenders are regularly obliged to compensate for damages caused by the assault (§§ 823 ff. BGB).
Procedural aspects under criminal law
Reporting and investigations
An assault is typically recorded and investigated by the police. Investigations include securing evidence, interviewing witnesses, and further forensic measures. Victims may also be required to report incidents to insurers.
Victim protection and compensation
Victims of an assault may be entitled to support under the Victims Compensation Act (OEG). In addition, they are entitled to protective measures to prevent contact with the perpetrator (e.g., witness protection programs).
Relevance in crime statistics
Statistically, assaults are recorded in the crime categories of robbery and extortion with force. The police crime statistics regularly distinguish between different forms and levels of severity in order to facilitate targeted prevention measures.
Assault in international law
Comparable offenses also exist in international and foreign law. However, the ranges of penalties and requirements for qualifying as an assault may differ considerably and are governed by the respective national legal systems.
Summary
Assault is a legally significant term that serves in particular as a qualifying element for various criminal offenses. Key features are the element of surprise, the use of violence, and hostile intent. The criminal and civil consequences can involve significant sanctions. The precise legal framework and distinction from other offenses must always be carefully examined in each individual case.
Frequently Asked Questions
What penalties are possible in the case of an assault under German law?
In German criminal law, an assault is usually classified as robbery (§ 249 StGB) or as particularly serious robbery (§ 250 StGB). The basic prerequisite for robbery is that violence is used against a person, or a threat of imminent danger to life or limb, in order to carry out the taking of another’s movable property. The penalty starts at a minimum of one year of imprisonment. If there is a particularly serious case, for example if weapons or dangerous tools are carried, the penalty can rise to not less than three years. In especially serious cases, such as aggravated bodily harm or death resulting (§ 251 StGB), a life sentence may be imposed. It should also be noted that even an attempted robbery is punishable. The actual sentence also depends on factors such as the severity of the offense, the involvement of others, the extent of violence used, and any prior convictions of the perpetrator.
Are there differences between an armed and an unarmed assault?
Yes, under German criminal law, a distinction is made regarding the use of weapons. An assault involving the use of a weapon or a so-called dangerous instrument constitutes a particularly serious case of robbery (§ 250 StGB). Objects that are objectively suitable for causing significant injuries are sufficient—a screwdriver or a bottle can be deemed dangerous if used as a means of threat during the act. The mere threat or display of the weapon is sufficient; it does not have to be used. This qualification results in a significantly increased minimum prison sentence—generally not less than three years. An unarmed—so-called ‘simple’—robbery is less severe, but still carries a minimum prison sentence of one year.
How does an assault differ from theft?
The key difference lies in the use or threat of violence. Theft (§ 242 StGB) is the taking away of another’s movable property with the intent to appropriate it for oneself or a third party unlawfully, but without the use or threat of violence against persons. Assault in the sense of robbery always involves physical violence or at least the threat of immediate danger to life or limb. As a result, robbery is punished much more severely than theft. In the case of theft, penalties range from a fine to up to five years’ imprisonment—with higher penalties for aggravated theft (§ 243 StGB)—while robbery in its basic form already carries a minimum sentence of one year’s imprisonment.
Is an attempted act also punishable?
Yes, under German criminal law, an attempt to commit robbery or a so-called ‘assault’ is also punishable in accordance with § 23 StGB. An attempt is considered if the perpetrator, based on their perception of the act, directly begins to realize the offense but fails to achieve the objective for reasons beyond their control (for example, because the victim escapes or the police intervene in time). An attempt is generally punished more leniently, so the court may impose a lower sentence. In some cases, prosecution may be waived only if the perpetrator voluntarily abandons further execution of the crime and prevents its completion.
Does wearing a disguise or costume increase the penalty for an assault?
Yes, the use of disguises, costumes, or other means to make identification of the perpetrator harder is considered aggravating for sentencing in the context of assault. The law considers this to be an indication of a particularly serious case of robbery (§ 250 para. 1 no. 3 StGB), as it significantly increases the victim’s vulnerability and hinders law enforcement. A joint assault by several armed perpetrators (“gang robbery”) is also evaluated particularly strictly (§ 250 para. 2 StGB). Depending on the overall circumstances, minimum sentences of five years in prison may be imposed.
What rights and duties does the victim of an assault have from a legal perspective?
Within the criminal proceedings, the victim of an assault is usually a witness and may participate as a joint plaintiff (§ 395 StPO), which grants special procedural rights, such as access to files or the right to be present at the main hearing. In addition, the victim is entitled to various assistance under the Victims Compensation Act (OEG), especially if health damage has occurred as a result of the crime. The victim may assert civil claims for damages and compensation for pain and suffering against the perpetrator, regardless of the criminal case. However, there is no obligation to actively confront the perpetrator – self-protection takes precedence, such as fleeing or alerting the police.
What role does the victim’s testimony play in criminal proceedings following an assault?
The victim’s testimony is of central importance. The case often stands or falls on the testimony of the injured party, especially where there are few or no objective traces or witnesses. Therefore, the victim is questioned as a witness regarding the criminal act, the course of events, possible perpetrator descriptions, and the damage caused. However, the court must critically examine the testimony; it cannot serve as the sole basis for a conviction as long as there are doubts about credibility (§ 261 StPO, principle of free assessment of evidence). In addition, the victim is given the opportunity to receive support through psychosocial process accompaniment. A carefully investigated and documented account of the facts is therefore particularly decisive for the outcome of the criminal proceedings.
