Can You Be Charged With Domestic Assault in Michigan If No One Was Hurt?

Yes. In Michigan a person can be charged with, and convicted of, domestic assault when no one was injured. Jurors are instructed that for a battery "it does not matter whether the touching caused an injury," and that "an assault does not have to cause an actual injury."^[2][1] A charge can even rest on an act that involved no physical contact at all.^[3]

What an injury does change is which charge is filed and how the case is proved. This page explains the no-injury rule, the points at which injury raises the charge, and the kinds of evidence that are used when there are no marks to photograph.

Why injury is not an element

For domestic assault, the prosecutor has to prove two things: that the accused assaulted, or assaulted and battered, the complainant, and that the two were in one of the relationships listed in the statute.^[8] Injury is not on that list. It becomes an element only for aggravated domestic assault, which adds a third element: that the assault caused a serious or aggravated injury.^[8]

The reason lies in how the two key words are defined.

Battery: an offensive touching is enough

A battery is "a forceful, violent, or offensive touching of the person or something closely connected with the person of another." The touching must have been intended, not accidental, and against the other person's will.^[2] Because "offensive" is one of three alternatives, the definition does not depend on force that causes harm.^[2] The instructions separately define "force and violence" as any use of physical force against another person "so as to harm or embarrass" that person.^[9]

Assault: no touching is needed

An assault is an attempt to commit a battery, or an act that would cause a reasonable person to fear or apprehend an immediate battery.^[3] For an assault without a battery, the prosecutor must also prove that the accused had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.^[10]

In both cases the act has to be intentional. The accused must have intended either to commit a battery or to make the other person reasonably fear an immediate battery, and the instructions state that an assault cannot happen by accident.^[11] The definitions are covered in full in Assault vs. battery in Michigan.

What an injury is still used for

Injury is evidence even though it is not an element. The instruction on this point reads: "An assault does not have to cause an actual injury. [However, if there was an injury, you may consider the injury with the other evidence in determining whether there was an assault.]"^[1]

The reverse is also true as a matter of logic. The absence of an injury is a fact both sides can argue from, but it does not decide the case by itself, because the jury is told an injury is not needed.^[1]

How injury changes the charge

Situation	Charge	Class and maximum	Is an injury needed?
Assault or assault and battery of a person in a domestic relationship	Domestic assault, MCL 750.81(2)	Misdemeanor; 93 days, $500, or both[12]	No[1]
Assault without a weapon that inflicts serious or aggravated injury	Aggravated domestic assault, MCL 750.81a(2)	Misdemeanor; 1 year, $1,000, or both[4]	Yes: a serious or aggravated injury[5]
Assault by strangulation or suffocation	MCL 750.84(1)(b)	Felony; 10 years, $5,000, or both[6]	No; the jury is told it does not matter whether the touching caused an injury[13]
Assault with a dangerous weapon	Felonious assault, MCL 750.82(1)	Felony; 4 years, $2,000, or both[14]	No; contact and injury are not elements[15]
Assault with intent to do great bodily harm less than murder	MCL 750.84(1)(a)	Felony; 10 years, $5,000, or both[16]	No; actual injury is not necessary, but an injury may be considered as evidence of intent[17]

Serious or aggravated injury

The aggravated assault statute does not define "serious or aggravated injury." The definition comes from the model jury instruction: "a physical injury that requires immediate medical treatment or that causes disfigurement, impairment of health, or impairment of a part of the body."^[5] With that injury and no weapon, the conduct fits aggravated domestic assault, a misdemeanor with a 1-year maximum.^[4] With one or more previous qualifying convictions it is a felony punishable by up to 5 years.^[18] See Aggravated domestic assault: MCL 750.81a.

Strangulation

Strangulation is an example of a serious charge that does not depend on visible injury. The statute defines "strangulation or suffocation" as "intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person."^[7] It is a felony punishable by up to 10 years, and it does not require proof of intent to do great bodily harm.^[6] See Assault by strangulation and Strangulation evidence.

Weapons and intent

Felonious assault needs neither a touching nor an injury; the added element is that the assault was committed with a dangerous weapon.^[15] See Felonious assault in a domestic setting.

Can police arrest when there are no visible injuries?

An officer may arrest for domestic assault without a warrant, even if the offense was not committed in the officer's presence, when there is reasonable cause to believe the violation occurred and that the suspect has one of the four domestic relationships with the victim.^[19] The statute does not make an injury a condition. The Michigan Attorney General concluded in 1994 that such an arrest may be made even with no physical evidence of abuse when other corroborating evidence is sufficient for probable cause.^[20]

What officers look for and how the arrest decision is made are covered in What happens when police respond to a domestic call and Is arrest mandatory for domestic violence?

What evidence is used when there are no marks?

Without an injury to document, a case may rest largely on accounts of what happened. Michigan evidence law gives the prosecution several routes, and the same rules govern what the defense can challenge.

• Testimony. The complaining witness and anyone else who saw or heard the incident can describe it. The prosecutor still has to prove each element beyond a reasonable doubt.^[21]
• Statements to police. MCL 768.27c is a statutory hearsay exception for a statement that narrates, describes, or explains the infliction or threat of physical injury on the person making it.^[22] It applies only if five statutory conditions are met, including that the statement was made at or near the time of the injury or threat, to a law enforcement officer, under circumstances that indicate trustworthiness.^[23] See Statements to police under MCL 768.27c.
• 911 calls. Michigan courts have admitted 911 recordings as present sense impressions and excited utterances.^[24] See 911 calls as evidence.
• Excited utterances. A statement relating to a startling event, made while the speaker was still under the stress of it, can be admitted even though it is hearsay.^[25]
• Other acts. In a case charging an offense involving domestic violence, evidence that the accused committed other acts of domestic violence is admissible for any purpose for which it is relevant, subject to an exception in the statute and to exclusion under MRE 403.^[26] See Prior acts of domestic violence.
• Photographs and recordings. A photograph is admitted on testimony from someone familiar with the scene that it accurately reflects what it shows.^[27] Photographs of a scene, such as damaged property, can be offered whether or not anyone was hurt. See Body camera footage.

The benchbook used by Michigan judges notes that in domestic violence cases the complaining witness is sometimes unavailable to testify, and that the prosecutor may then seek admission of earlier testimony or other statements as substantive evidence.^[28] The overview is in Evidence used in Michigan domestic violence cases.

What a no-injury case looks like for the defense

The absence of injury does not end a case, but it leaves the usual questions open. Each of the following is an element or issue the prosecutor has to deal with.

• Was there a touching, and was it intended? An accidental touching is not a battery.^[2] Where the accused says the conduct was accidental, the prosecutor must prove the required intent beyond a reasonable doubt.^[29] See Accident and lack of intent.
• Was it justified? Self-defense is a separate body of law; see Self-defense law in Michigan.
• Is the account reliable? When there is no physical evidence, a case may turn on the credibility of each account. See False accusations of domestic violence and Defenses to domestic violence charges.

What people get wrong

"No marks means no assault." Injury is not an element of assault, battery, felonious assault, or strangulation.^[1][15][13]

"It was only a push." A push can fit the definition of a battery if it was a forceful or offensive touching, intended, and against the other person's will.^[2]

"I never touched anyone, so it cannot be assault." One form of assault is an act that would cause a reasonable person to fear or apprehend an immediate battery.^[3]

"The other person does not want to press charges because nobody was hurt." The prosecutor alone has authority to decide whether to prosecute.^[30] See Can the victim drop domestic violence charges?