Will Smith is not currently facing charges for assault after he appeared to hit comedian Chris Rock during the Oscars on Sunday night. Smith is not under police investigation after Rock declined to file a police report into the incident - witnessed by millions of people watching the Oscars live.
But California state law does not require the victim to 'press charges' or file a complaint, and the offence can be prosecuted any time up to 12 months after the incident. Simple assault - which includes swinging at someone with the intent to hit them, and battery, which involves hitting someone, are covered by California Penal Codes 240 and 242.
A prosecutor can choose to make a case against someone even if the victim does not co-operate. And even if a victim does not file a police report, the victim can file a civil case to seek damages.
Conviction for battery can be punished by up to six months in county jail and a fine of up to $2,000.
Eisner Gorin criminal defense said: "Prosecutors are responsible for holding the guilty accountable for their actions. There are many factors they consider in whether or not to “press charges.” These factors include any evidence that supports guilt and whether it's admissible. Also, the credibility of the victim or witnesses, and the level of harm caused."
But they added prosecutors will consider victim co-operation before pursuing a case and said: "A primary factor for a prosecutor to make a decision are police reports. They are typically the most relevant documentation used in deciding whether or not to pursue criminal charges."
SanDiegoCtriminalAttorney states: "In California, most simple assault is tried and prosecuted as a crime, depending how the alleged victim chooses to press charges. There is, however, a way for alleged victims to seek reimbursement for damages caused, without pushing criminal charges: a civil lawsuit. In a civil lawsuit about assault, the victim sues the assaulter for reimbursement of things such as lost wages, medical bills, or other costs associated with the assault.
"Importantly, in a civil lawsuit, the victim can sue the alleged assaulter without that person being charge d with the crime or without being deemed guilty of it because it is possible for a person to sue anyone and up to the courts to decide whether the other party is indeed responsible for the damages."
CriminalDefenseLawyer states: "Someone who commits a simple assault or battery in California generally is guilty of a misdemeanor, although certain assault and battery crimes can be charged as a misdemeanor or a felony, at the prosecutor's discretion "
Valery Nechay adds: "In essence, the difference between an assault and battery charge in California is intent. While simple assault involves an attempt at causing violent injury to another person, simple battery in California involves the actual application of force or violence on that person. It’s important to note, however, that while the use of force is considered simple battery under the California Penal Code, the act does not need to have caused any harm or injury. In any case, even the most minor simple assault or battery charges can bring significant consequences."
