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When Bob is angry arguing with his friend Harry, he tries to intimidate him by swinging his fist in Harry's face a few centimeters away, without actually hitting him.

If Harry hits Bob in self-defense (even though Bob's fist never touched him), who will be charged and whose fault is it under US law?

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Both Bob and Harry have performed the actus rea of assault

Bob has no defense.

Harry has a potential self-defense defense. In the US the onus is on Harry to prove on the balance of probabilities that it was self-defense. In other common law jurisdictions the state must prove beyond reasonable doubt that it wasn’t.

Notwithstanding, whether the responsible party has met their burden is up to the trier of fact (jury or judge). If the facts as you state the can be proved, Bob is guilty and Harry is not guilty.

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  • "to prove on the balance of probabilities that it was self-defense" Can you please clarify?
    – likejudo
    May 7, 2022 at 14:34
  • @likejudo not really, the sentence speaks for itself. What don’t you understand?
    – Dale M ♦
    May 7, 2022 at 21:58
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    I believe that in some US states the facts as stated in the question will not amount to self-defense, even if proved. Also, in some states, it is only self-defense if Harry had a reasonable belief that Bob was likely to injure him if not prevented. If Harry knew that Bob intended only intimidation, Harry has no defense in such states.
    – David Siegel
    Jun 6, 2022 at 5:12
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    @likejudo "balance of probabilities" is a term used in the UK and perhaps other common law jurisdictions that corresponds more or less to the US "preponderance of the evidence."
    – phoog
    Jun 6, 2022 at 9:16
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    "the facts as stated tell us nothing of Harry’s or Bob’s state of mind": the facts as stated include Harry's intent not to strike Bob. This would be difficult to prove in court, and it would be even more difficult to prove that Bob knew or should have known of Harry's intent.
    – phoog
    Jun 6, 2022 at 9:19

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