Aron Solomon Speaks to Forbes on the Will Smith Slap Heard Round the World

This article first appeared in Forbes

Will Smith took the stage twice last night at the Oscars. First, it was to slap Chris Rock following a joke the comedian made about the actor’s wife, Jada Pinkett Smith. He then returned to the stage to accept his first-ever Best Actor Oscar for his role as Richard Williams in King Richard.

The audience at the Dolby Theatre in Los Angeles, as well as the viewers at home, were stunned and confused, wondering if this was staged. It wasn’t—and the moment overshadowed the awards show.

“Love will make you do crazy things,” a tearful Smith said as he accepted his award. He apologized to the Academy and the audience but not to Rock. Could the slap heard across the world cost the actor his award? And could he face legal action?

The LAPD released a statement that Rock has declined to file charges and thus far, the Academy has not taken any action. The internet is split with many supporting Smith’s strong defense of his wife while others are appalled at the idea of violence under any circumstance. Regardless of where you stand on the matter, there are legalities to consider.

Was This Assault, Battery, Or Both Under California Law?

According to Aron Solomon, chief legal analyst for Esquire Digital, the answer is both. “The question that millions of people are asking this morning is whether Smith’s actions legally constituted assault and battery. While the Oscars are broadcast to a massive audience around the world, they are held in California where assault and battery are, by statute, two different crimes. It is clear that what happened at the Oscars was an assault under the California statutory definition.”

Solomon explains that California Penal Code 240 PC deals with assault, while California Penal Code 242 PC deals with battery. “It is clear that what happened at the Oscars was an assault under the California statutory definition. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

Solomon details the pivotal moment Smith first got up from his seat. “When Smith left his seat in response to Rock’s comment about his wife, walked up to the stage and approached him, he had the ability to commit a violent injury. This in itself is an assault. Legally, the assault is not predicated upon a successful commission of another act, such as striking the other person. Simply a threatening act or statement that causes another person to believe that they are about to be attacked constitutes an assault in California.”

Per Solomon, assault under California Penal Code 240 PC, known as “simple assault” is a misdemeanor and is punishable by a fine of up to $1,000 and/or up to six months in county jail. He also claims that this incident fits the California statutory definition of battery.

“A battery is any willful and unlawful use of force or violence upon the person of another. When Smith actually hit Rock, whether it was a strong open-handed slap or a closed-fist punch doesn’t matter at all according to the law, and he committed an extremely well-documented battery under California law.”

Battery under California Penal Code 242 PC is a misdemeanor, punishable by a fine of up to $2,000 and/or up to six months in county jail. This punishment, says Solomon, would likely never happen to Smith.

This Could Be A “Wobbler”

When asked if there are ever cases that fall somewhere between assault and battery, Solomon explains that the only thing that is legally uncertain is which battery statute is relevant here. While California Penal Code 242 PC generally deals with battery, where a battery is committed and it results in a significant or serious injury, the charge is far more serious and is covered by California Penal Code 243(d) PC which states: When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment according to subdivision (h) of Section 1170 for two, three, or four years.

“While Chris Rock chose to hold himself together and go on with the show, we don’t know whether he sustained any physical injuries. Not only could he have sustained a facial or jaw injury, we also don’t know what medical conditions he has that could have been exacerbated when he was struck in the face. Perhaps he has headaches today and the full physical effect of the battery takes days to measure. This is why the statute delineates between less and more severe battery charges,” Solomon explains.

An important note, adds Solomon, is that there is a remote possibility that what happened could be treated as what is referred to as a “wobbler,” an offense that wobbles between being a misdemeanor and a felony. “The prosecutor in an assault and battery case has some leeway into how they want to charge. In a case such as this, with such a public assault and battery, while it is more than likely to be charged as a misdemeanor, who knows what legal perspective a zealous prosecutor might take.”

Though the LAPD confirms that Rock declined to press charges, this may not be the end of it. “Legally, the LAPD witnessed an assault and battery. Whether they saw it happen in real-time or a few moments later on tape, they should have arrested Smith,” Solomon concludes.

Could Rock File Civil Charges?

Per Solomon, Rock could decide to press civil charges. Under California Code of Civil Procedure section 335.1, the victim of an assault and battery has two years from the date of the intentional act to file a civil lawsuit.

“There are many reasons Rock might at some point choose to file a civil claim. Perhaps the battery will leave him with some kind of lasting physical or even reputational injury. Perhaps, upon reflection and considering public outcry, he decides that filing a civil suit is a good way to get the issue of how unacceptable violence is further into the public spotlight,” states Solomon. “Regardless of the reason for filing a claim, and even if Rock ultimately chooses not to file charges, the clock has started ticking on the two years he has to file a civil suit in response to an assault and battery that was seen in real-time around the world.”

An Open-handed Slap Versus A Closed Fist

Is there a legal difference between the two under California law? “No,” Solomon firmly answers. “Let’s remember that Smith is an expertly-trained boxer, having played Muhammad Ali. I guarantee that the open-palmed ‘slap’ he gave Rock is probably a hundred times harder than any punch you and I could throw.”

Could The Academy Rescind Smith’s Oscar?

The Academy of Motion Pictures Arts and Sciences runs the Oscars and early this morning, the organization tweeted that it “does not condone violence of any form.” There is a strict code of conduct and per Solomon, this depends on the Academy and its rules.

The Academy’s code of conduct was updated in December 2017 in the wake of the #MeToo movement and it emphasizes the importance of upholding its values and ethics. This includes upholding values of respect for human dignity, inclusion and a supportive environment that fosters creativity.

“Rescinding Smith’s Oscar would depend on the contractual relationship between the Academy and the recipient,” Solomon explains. “If Smith’s actions violated this contract, then he could, in theory, lose his Oscar.”

According to Beverly Hills entertainment attorney Mitra Ahouraian, whose clients include actors, directors, producers and musicians, the Academy’s guidelines aren’t entirely clear. “The Academy’s code of conduct states ‘there is no place in the Academy for people who abuse their status, power, or influence in a manner that violates recognized standards of decency.’ Although that was written in the context of discrimination, abuse of power and sexual abuse, it arguably could be applied here. Even if his Oscar isn’t taken away, Smith can be kicked out of the Academy, which means he would no longer nominate or vote.”

Ahouraian explains this would require a two-thirds majority vote of the Academy Board of Governors, which consists of Hollywood heavyweights including Steven Spielberg, Eric Roth and Whoopi Goldberg. “We’ve only seen that happen once in recent history, with Harvey Weinstein back in 2017. Roman Polanski, Bill Cosby and Mel Gibson have all maintained their membership despite being involved in much more heinous acts. Chris Rock didn’t even file a police report here and doesn’t intend to bring charges. Even losing your membership in the Academy doesn’t mean your films can’t win Oscars. It just means you can’t vote. What’s more likely to happen is that Will Smith will be banned from attending the ceremony in the future, even with an apology and promise to behave. People are going to want to see some sort of consequence.”

In an update, the Academy is launching a formal review of the incident. A spokesman released a statement condemning Smith’s actions. “We have officially started a formal review around the incident and will explore further action and consequences in accordance with our Bylaws, Standards of Conduct and California law.” In addition, The Hollywood Reporter reported that “an emergency phone call” is being arranged with academy members.

Smith and Rock were contacted for comment via their Instagram accounts but neither replied at the time this article was published.

.