Unlawful Wounding: A Lesser Offense to Malicious Wounding in Virginia

Having an attorney who knows how to defend your criminal prosecution for malicious wounding is critical. Many criminal lawyers lack the experience in defending malicious wounding cases in Virginia, and therefore cannot give their client the best representation available. Every competent criminal defense lawyer should know that when defending a malicious wounding charge, every effort should be made to debunk the element of malicious intent, which will reduce the charge to unlawful wounding.

Examination of the differences in the punishment of the two crimes will explain why this should be done. The penalty for malicious wounding can range from five to twenty years imprisonment; a conviction of unlawful wounding may result in a penalty of no more than a year in jail.

An "unlawful wounding" occurs when the accused wounds a victim “with the intent to maim, disfigure, disable, or kill” him. But, if the defendant acts with malice, he is guilty of malicious wounding. In other words, the Commonwealth must prove beyond a reasonable doubt that the accused acted with "malicious intent" to obtain a conviction on the more serious charge.

It is often impossible to prove through direct evidence the malicious intent required to prove malicious wounding. However, malicious intent may be inferred and proved by the totality of the circumstances existing in the case. The factfinder may discern that the defendant had malicious intent from the nature of the defendant's conduct, the foreseeability of harm arising from it, or the evident motivation behind the wounding. As always, the factfinder can infer that every “person intends the natural and probable consequences of his or her acts."

Recently, I defended a young man who was charged with malicious wounding. Because the Commonwealth failed to establish sufficient facts at trial to prove either malicious intent or "intent to maim, disfigure, disable or kill," the trial judge refused to allow the case to go forward on either felony, and ruled the only possible charge the Commmonwelath could go foward with was assault and battery -- a Class 1 misdemeanor. My client was acquitted of that charge, and set free.