Can someone be charged with assault if he wasn’t the aggressor and just acting in self-defense?

UPDATED: Oct 1, 2022

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Can someone be charged with assault if he wasn’t the aggressor and just acting in self-defense?

The evening of the incident there was arguing then the victim hit the defendant with a beer bottle. The defendant got up shoved said victim before she hit him upside the head with the other beer bottle. When he pushed her, her Chihuahua was behind her. She tripped and fell over the dog and hit her head on a glass table. A week later she went to the hospital with blood around her brain. The Nuro surgeon New Link Destination
ld her father that the fall wouldn’t cause this. The defendant is charged with aggravated assault SBI. She did not call the detective or press charges. Her dad did claiming he was the victim and the witness. No one was there aside from her dog and her son upstairs sleeping. Can he be convicted for assault if he was just defending himself to get away from being hit again with a glass bottle?

Asked on June 16, 2019 under Criminal Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Legally, if the defendant was, as you write, acting in self defense--shoving someone to block or prevent an attack with a beer bottle--then he did not commit assault, or rather has a good "affirmative defense" to assault: self defense. It is not a criminal act to strike, shove, etc. another person to defend yourself from an attack.
Practically, if she and/or her father lie about the circumstances in a credible or believable way, the defendant could be charged, possibly even convicted. When there is no videographic evidence or other witnesses and it comes down to a "he said, she said" situation, much hinges on who is more credible for believable. Since the defendant is male and she is female and more often than not, men attack women and not the other way around, and since also the neurosurgeon stated that he does not believe a fall caused the damage (which suggests that she was punched or struck in the head, which undercuts the defendant's story of shoving her), the circumstances tend to suggest that the defendant, not she, was the aggressor; if on top of those circumstances she and/or her father are believable in the story(ies) they tell, then yes, the defendant could be charged.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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