Will Josh Brown’s recent admissions get him charged with domestic violence assault?

I previously wrote about why it took so long to hear about former Seahawk and New York Giants kicker Josh Brown’s May 2015 arrest for domestic violence. As I previously explained, the King County Prosecuting Attorney’s Office never did file charges against Brown and based on a May 24, 2016 memo the prosecutor sent to the King County Sheriff’s Office, it appears they will not be filing any charges without receiving statements from additional witnesses (which they were never able to obtain).

Brown recently spoke about the incident on Good Morning America, and according to an article on ESPN, Brown stated, “I mean, I had put my hands on her. I kicked the chair. I held her down. The holding down was the worst moment in our marriage” but “I never hit her. I never slapped her. I never choked her. I never did those types of things.” Because Brown voluntarily agreed to be interviewed, the prosecutor can use his statements against him to prove the offense in trial.

So, will the King County Prosecuting Attorney’s Office change their mind and decide to charge Brown based on his recent statements? Brown could conceivably be charged with Assault in the Fourth Degree-Domestic Violence. In Washington, “assault” is not defined by statute but is defined by case law. The Washington Pattern Jury Instructions-Criminal WPIC 35.50 defines assault as “an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.” In other words, under Washington law, assault is defined extremely broadly and would certainly include Brown putting his hands on his ex-wife, kicking a chair, and holding her down.

So in short, Brown just confessed to committing Assault in the Fourth Degree-Domestic Violence, an offense that, if convicted, takes away one’s firearm rights and prevents one from entering Canada, among other things. Moreover, the statute of limitations for Assault in the Fourth Degree-Domestic Violence has not yet expired in Brown’s case. RCW 9A.04.080 defines the statute of limitations on both felony and misdemeanor offenses in Washington and states that Assault in the Fourth Degree-Domestic Violence, which is a gross misdemeanor, must be charged within two years of the date of the offense (May 2017 in Brown’s case). So it is conceivably possible that Brown’s interview on Good Morning America could convince the King County Prosecuting Attorney’s Office to change their mind and charge Brown with a crime. Of course, if the prosecutor does charge Brown, they would have to prove the offense beyond a reasonable doubt. Brown’s statements on the interview would help, but ultimately, the prosecutor would likely need the cooperation of other witnesses. Moreover, Brown did not specify which date he put his hands on his ex-wife, kicked a chair, and held her down, making obtaining a conviction even more difficult.