Legal Question in Criminal Law in Michigan

Re: Assault

I read the defense attorney's response, but feel compelled -- as a prosecutor -- to respond, too. (But understand that my response is premised on the facts you reported being true, accurate and complete, because the charging prosecutor may have had access to other facts.)

The other attorney's response is incomplete. Not all unwanted touchings are "assaults". They may be "batteries", but not necessarily "assaults". My office web site has a legal glossary (www.co.eaton.mi.us/ecpa/define.htm) which may help explain, but an assault requires that you do something with an intent to hurt or frighten the other person. If that results in a touching, it's an assault & battery, but if there's no contact then you can still be charged with assault (which carries the same penalty as A&B). Example: You touching his arm to get him to leave your house may be an unwanted touching (from his perspective), but it isn't an assault because you're not trying to hurt or frighten him ... just get him to leave; thus, it isn't a crime.

True, there is a general duty to retreat from possible assaultive conditions, except when you are in your home. However, just because you are in your home, you do not have carte blanche authority to hit people.

Based on your reported facts, I personally would not have issued the charge against you ... but not just because it happened in your home. I'd be more influenced by the facts that this was a "mutual confrontation" (i.e., he apparently wanted to duke it out with you, and you taking off your glasses basically told him, "Let's get it on!"). Who threw the first punch (and whether it was a 'sucker punch'), who got hurt, who arguably lost the fight, etc. are not important when both sides have, essentially, agreed to fight. That's why boxing matches are not crimes.

If you had done NOTHING to agree to participate in a fight, and he threw the first punch, you could have acted in lawful self defense and hit him back to protect yourself. But only to the limited extent necessary for protection.

I agree with the other response's suggestions to (a) get locks on your doors and USE them, and (b) get a PPO against him coming on your property, threatening/contacting you, etc. Our web site has a good PPO information page (www.co.eaton.mi.us/ecpa/ppo.htm).

Re: Assault

First of all, any uninvited offensive touching is an assault whether in your home or not. One has a general duty to flee from a situation before using force EXCEPT at one's home. NO duty to leave your home.

I do not understand why you did not have a lock on your door and simply refuse his entry or call the police and report him for trespassing or even consider obtaining a personal protection order.

Nevertheless, I recently defended a person in a similar case in Mount Clemens, Michigan and the jury acquitted the defendant after less than 2 minutes.

You should take photos of your injury. Any other witnesses?

Sanford A. Schulman 1-800-529-7747