The concept of an assault or a battery may bring to mind the image of a brawl or a fist fight. But under U.S. law, the terms assault and battery have different meanings. Although states may modify the definition of assault and battery in their criminal laws, in a typical U.S. state,
- An assault involves an attempt to make unwanted contact with another person;
- A battery involves the unwanted touching of another person.
Some states have combined the crimes of assault and battery into a single offense.
It is not necessary that the contact be significant, or that a physical injury result. The act of spitting on somebody, or pushing a person without making that person stumble or fall, still constitutes a battery.
An assault is an act that causes a person to fear a battery, an offensive, unwanted touching. The normal elements of assault are:
- An intentional act that puts another person in reasonable fear of offensive contact; where
- The act was intentionally committed by the defendant.
Assault is sometimes described as an attempted battery, and often the difference between an assault and a battery is that the defendant did not succeed in making physical contact with the victim, as in a proverbial "swing and a miss". But the act of assault can be established from any action, threat or behavior that puts another person in fear of imminent harm.
Words alone cannot constitute an assault, as there must be surrounding acts or circumstances that create a reasonable fear of contact for an assault to occur. However, such acts as the making of a credible threat may potentially be charged as crimes under other laws.
Assault is a general intent crime, meaning that it is not necessary to prove that the defendant intended to commit an assault or directed the assault at a specific victim. For example, the act of pointing a firearm toward a crowd can support assault charges, even if the defendant did not intend to intimidate the crowd or any specific person within the crowd. No matter what the defendant may have been thinking, the pointing of the gun is an intentional act, and the fear of the crowd is a reasonable response to that act.
A battery involves the unwanted touching of another person. The normal elements of battery are:
- There is an intentional touching of another person;
- The touching is harmful or offensive to the person;
- The person did not consent to the touching.
A battery results from intentional unwanted contact, not from careless contact. Accidentally bumping into another person is not a battery, even if your carelessness causes the person to fall and suffer injury, although such an accidental contact could result in civil liability (a lawsuit for damages from the injury).
Harmful or Offensive Contact
In order to constitute a battery, the contact made must be offensive or harmful. Spitting in somebody's face is a battery, even if the primary harm is to the victim's dignity. Where no injury occurs, evaluating whether an act would be sufficiently offensive to be deemed offensive is normally based upon the perspective of how an ordinary person would respond to the contact. The act of intentionally placing of a hand on somebody else's shoulder might be considered to be an offensive contact in some contexts, but excused as non-criminal behavior in other contexts, based upon how a typical person would interpret the contact.
Consent to Battery
Consent to a touching can be expressly given or it can be implied from the circumstances.
- Express consent: A person may authorize a touching that would be a criminal act in the absence of consent. For example, although a surgical procedure performed without consent would constitute a battery, the same procedure performed with consent is not a crime. If you voluntarily participate in a boxing match, it is not a crime for your opponent to punch you.
- Implied consent: Sometimes consent for a touching can be implied from the circumstances. For example, participation in an organized sport that involves intentional or incidental physical contact implies acceptance of contact consistent with the rules of the sport and the manner of game play. A foul in basketball, even if intentional, is not likely to support a battery charge because fouls are part of the customary practice of the game.
In some cases, a touching may be legally privileged, meaning that even though the person who is offensively touched did not consent to the touching, no crime occurs.
For example, if a police officer has legal grounds to perform a Terry Stop, a brief investigative stop of a person for purposes of investigating possible criminal activity, the police officer may pat the person down to check for weapons. As the law permits the pat-down, even if the person objects the officer's actions do not constitute battery. Similarly, even if forcible, the lawful arrest of a person does not constitute a battery.
You may hear the terms "simple" and "aggravated" being used to describe an assault or battery. The term "simple" refers to the basic crime of assault or battery, that is normally charged as a misdemeanor offense. More serious offenses are deemed "aggravated", and may be charged as a felony offenses with potential for a prison sentence.
The term "aggravated" may suggest that a person who is accused of committing an assault or batter was angry or agitated at the time of the incident. But in fact, the term refers to the seriousness of the act or injury that constitutes the alleged crime.
An assault or battery may be deemed to be an aggravated, or more serious, offense based upon factors that include:
- The intent behind the act: An assault or battery that is committed as part of a plan to commit a more serious crime can typically be charged as an aggravated offense. For example, if a defendant attacks a person with the intent of committing a sexual assault, the act could be charged as an aggravated battery even if the sexual assault does not occur.
- The nature of the act: Where an assault or battery is carried out in a manner that makes it more likely that physical injury will occur, it may be charged as an aggravated offense. For example, threatening another person with a firearm may be classified as an aggravated assault. Hitting a person with a baseball bat or stabbing the person with a knife could be charged as an aggravated battery, even if no serious injury results.
- The injury that results: If the victim of a battery is seriously injured, an aggravated battery charge may be pursued. For example, continuing to punch, hit or kick a person after a fist fight ends, causing serious injury, could constitute an aggravated battery even if the defendant might have been able to claim consent or self-defense to prior contact with the victim.
- The nature of the relationship with the victim: In some states, people who are the role of caregiver may be charged with an aggravated battery for an offense committed against a vulnerable person in their care. For example, if an employee of a nursing home batters a resident, even if the physical injury is minor, a state may allow for an aggravated battery charge based upon the caregiver relationship.
Domestic violence charges may result from acts of assault or battery between people with a domestic relationship. While often the relationship is marital or romantic, domestic violence charges may also apply to assaults of parents by their children, and to other assaults that occur between people with shared living arrangements.
The primary differences between domestic violence charges and ordinary battery charges are:
- Mandatory arrest policies: Under a mandatory arrest policy, a police agency responding to a call that involves an incident of domestic violence must arrest one (or both) of the parties to the incident and remove that person from the home.
- Restraining orders: Although state law typically allows for any victim of assault or battery to seek an order of protection against the offender, it is generally easier to obtain a protective order following an act of domestic violence. Also, many courts issue restraining orders as a condition of pretrial release, or as part of a defendant's sentence, limiting or forbidding the defendant from having contact with the victim.
- Deferred sentencing: Many jurisdictions allow for people charged with first offense domestic violence to enter into a plea bargain that allows them to avoid a criminal conviction, following their successful completion of a deferred sentence. The court may require the defendant to participate in counseling, substance abuse treatment, or to take other steps or actions during the period of deferral.
- Firearms rights: Under state law and the federal Lautenberg Amendment, a conviction of domestic violence will trigger the loss of the right to own or possess a firearm.
Victims of domestic violence who are not U.S. citizens may be protected from removal (deportation) pursuant to the terms of the Violence Against Women Act (VAWA). The act protects both male and female victims.
Among the possible defenses to an assault or battery charges, a defendant may claim the following:
If the defendant establishes that the victim consented to the act that constitutes the alleged assault or battery, subject to the reasonable bounds of public policy, consent is a defense to a criminal charge.
For some acts, such as those that are likely to result in death or physical disfigurement, charges may potentially be brought even if consent was given. The most common example of consent is physical contact that occurs within the normal course of participation in a sport.
You may use reasonable force to defend yourself from bodily injury, even if that reasonable response involves having contact with or causing injury to your attacker.
The amount of force that you may reasonably use varies by the context and jurisdiction. As a general rule, you can use more force and often deadly force to stop a threat within your own home, even if a lesser response might have been adequate if you were in a public place.
Defense of Others
If a person reasonably appears to be in need of aid, and you come to the aid of that person, you may use reasonable force to defend the person from harm. For example, if you see a person being attacked, and you take reasonable action to stop the attack, your motive to help the person under attack provides a potential defense to any assault or battery charge.
Defense of Property
Although the degree to which a claim of defense of property will provide a defense to a battery charge can vary significantly by state, states typically permit the use of reasonable force to stop a felony from being committed, or to allow the owner of property to keep it from being taken by a thief or robber.
If somebody tries to grab your phone out of your hand or your purse from your shoulder, and while applying a reasonable level of force you push the person away or grab your property back, you can assert defense of property as a defense to a battery charge.
A claim of legal privilege will often allow a person to avoid assault or battery charges, or provide a strong defense to a charge. For example, a police officer who effects a lawful arrest cannot be prosecuted for assault or battery for the threats or contact that occur in carrying out that arrest.
However, if the acts exceed the officer's lawful authority, as might occur if the officer engages in unnecessary brutality when arresting a suspect, then charges become possible. Similarly, states typically authorize stores to use reasonable force to detain people who are caught shoplifting on their premises.
Performance of duty
Some job positions may require an employee to engage in threats or physical contact with another person. For example,
- A referee in a boxing match may have to physically separate the combatants,
- A bouncer in a night club may have to make contact with a patron to break up a fight, or to escort a patron out of the premises when the patron won't follow instructions to leave.
In such a context, the employee's reasonable performance of the job duty will not constitute the crime of battery.
Similarly, a bailiff who is charged by court order with carrying out an eviction may physically remove a tenant and the tenant's property from a rental property without being charged with battery.
Parents, and those who are legally deemed to be in the position of parents (in loco parentis) may engage in the reasonable physical discipline of children without being charged with battery. Some states authorize physical discipline of pupils by schoolteachers and administrators.
Any person charged with a criminal offense, even a relatively minor offense, will benefit from discussing the charges and possible defenses with a criminal defense lawyer.