Will Smith’s slap during the 2022 Oscars may very well have been a slap heard across the world. In mere minutes, the event took over social media – overshadowing any award, speech, or heartfelt moment of the night. This situation and the resulting discussions on social media can give us an interesting insight into how the law operates around assault, and what really matters when it comes to getting charged for a violent offense.
It’s important to remember that every jurisdiction has different laws surrounding assault, so these laws may differ depending on the area. This is by no means an analysis of California law, but an analysis of the situation under Washington law as a way of examining how assault and domestic violence are prosecuted in our state.
Why Wasn’t Will Smith Arrested?
This was one of the most common questions seen online after the Oscars – after all, the whole internet saw the video, and it’s pretty clean-cut. It’s hard to get better evidence than a video broadcasted live to the entire world. If ever there was a case of getting caught red-handed, this would be it. Some armchair legal enthusiasts argued that Chris Rock’s joke constituted justifiable provocation, while others assumed that because Rock did not choose to press charges, they couldn’t arrest or prosecute Smith (a common assumption about both assault and domestic violence cases). While the latter is closer to the truth, both are patently incorrect.
In Washington, the police have their own criteria based on the rule of law which determines whether or not they will arrest an individual for assault. In the case of a non-domestic violence assault, police have the discretion of whether or not to arrest the individual, and may or may not take into account the wishes of the victim. It’s important to keep in mind that an arrest has no influence on whether or not the individual will be prosecuted. An arrest is different from a filed criminal charge in court. The prosecutor is the decision-maker on whether to pursue charges.
However, the police do not have the same leeway in cases of domestic violence assault; the law states that they must take a person into custody when they have probable cause to believe that a “family or household member” or “intimate partner” has been assaulted. A witnessed slap with no legal justification is more than enough probable cause for police to make an arrest in the case of domestic violence.
After an arrest, it is up to the prosecutor whether or not to pursue charges for assault. In most cases, non-violent included, this decision is based on the body of evidence available and the circumstances of the case. The prosecutor may decide against filing charges at the request of a victim, but they are by no means bound to follow the victim’s wishes. Specifically, Washington prosecutor guidelines say that “It is proper to decline to charge because the victim requests that no criminal charges be filed”. The verbiage that “it is proper” to do so specifies that it is acceptable for a prosecutor to do so, but not required to do so. It is within the prosecutor’s discretion. As such, at the discretion of the prosecutor, Smith could still be charged for his actions even if Chris Rock didn’t want him to be charged. (Again, this is assuming hypothetically that the Oscars and “The Slap” occurred in Washington state where Washington state laws apply).
Most importantly, however, this standard is not the same for domestic violence assault cases. Guidelines for domestic violence assault specify that charges “shall be filed if sufficient admissible evidence exists, which when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact-finder.” While that’s a lot of legalese, it boils down to this: if presented with reasonable evidence that suggests domestic violence has occurred, the prosecutor must file charges, regardless of what the victim wants. This is a break from what most people believe about domestic violence and one that is important to keep in mind. Most people think it should be the victim that decides whether charges should go forward.
When it comes down to the law, no matter how provocative someone’s words are, unless the words are a threat that causes someone to fear an imminent assault, offensive words alone do not justify assault. Rock’s joke was far from a threat. The arguments made online that Rock had it coming to him and Smith’s actions were justified would never hold up as a legal defense in court.
Situations like this are something we see frequently in assault and domestic violence cases; one party says something provocative, and the other responds in a way that is emotionally charged and legally unjustified. At the end of the day, trouble often comes from emotions and actions in the heat of the moment. Will Smith committed a crime in front of everyone. However, he isn’t a “criminal,” he is just someone who made a bad mistake; as are many of the people who face these charges on a daily basis. One important lesson from this situation is that if it can happen to Will Smith, a world-famous multimillionaire, and in the middle of one of the biggest award ceremonies on television, it can happen to anyone. When it does, we’re here to step in and fix the damage, and without judgment. If you’ve found yourself in a similar situation (not the Oscars of course, but a regrettable assault in the heat of the moment) and need skilled legal representation, contact Burke Brown Attorneys today to schedule a consultation.
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