Assault

Assault and Battery

Reviewed by David Goguen, J.D., University of San Francisco School of Law
The same conduct can lead to a personal injury lawsuit and/or a criminal prosecution, depending on who initiates the case, but there are key differences when it comes to the burden of proof and the consequences of liability.

"Assault" and "battery" are legal terms that describe certain conduct that can give rise to both civil and criminal liability. In this article, we'll take a close look at the definitions of "assault" and "battery" (along with some examples) as well as the interplay between the civil and criminal court processes when it comes to these kinds of cases.

What is an Assault?

Whether viewed as a civil wrong (a "tort" or personal injury) or a crime, an assault is typically defined as intentional conduct that is meant to place another person in reasonable apprehension or fear of harmful contact. The contact must appear to be imminent, meaning that the offender must appear to have the present ability to cause the contact, even if he or she is not actually capable of inflicting injury. An assault is committed even if the contact never occurs. It's the purposeful creation of fear of contact that gives rise to the civil or criminal liability.

It's important to note here that civil assault (which is defined as an "intentional tort") carries the same definition from state to state, since it's based on longstanding "common law" rules that apply to civil cases across the country, as opposed to specific laws. Since criminal statutes do vary from state to state, and every state has its own statutory definition of assault as a crime, there is bound to be some slight variation from the definition set out above. (In many modern criminal codes, the definition of "assault" may also encompass "battery," or harmful contact; more on this later.)

Assault Examples

Acts that could constitute an assault include:

  • Angela swings a fist at Valerie, who sees the punch coming, and ducks (Angela doesn’t actually hit Valerie).

  • Andy holds a loaded gun to Victor's head (the same goes even if the gun was unloaded, or if it's a toy gun, but Victor reasonably thinks it's real).

Examples of acts that would probably not constitute assault include:

  • Sitting in a restaurant, Alvin tells Vicky that he intends to run her over in his car at some point in the future (there's no imminent threat).

  • Andy intentionally swings a hammer toward Victor's head, but Victor was never aware of the act.

  • Andy swings a hammer at a nail on a wall, and the hammer comes close to Victor's head, but Andy didn’t know anyone else was around (here, Andy has no intent to cause fear of harm).

What is a Battery?

A battery is an intentional act that results in offensive or harmful contact with someone else's person, without that person's consent. A battery can sometimes be seen as a completed assault, although that's not a perfect definition.

Making incidental contact with someone -- bumping into them, in other words -- while walking through a crowd isn't going to amount to battery; but intentionally pushing people in that same crowd out of the way may be enough. Also, the defendant need not actually touch the plaintiff using his or her body; the contact may be indirect -- intentionally hitting another person’s car with your own could be considered battery.

Again, as we touched on in the "assault" section above, this "battery" definition is pretty standard in civil lawsuits nationwide. But state criminal statutes differ in the language they use to define "battery," and in many states, the definitions for the crimes of "assault" and "battery" may have a fair amount of overlap, or one term (i.e. "assault" or "assault and battery") may encompass both crimes.

Battery Examples

Acts that constitute battery could include:

  • playing a joke on a person, where the "punchline" involves offensive contact

  • performing surgery on the wrong area of a person's body

  • throwing an object that strikes a person, and

  • poisoning a person's drink.

Examples of acts that do not constitute a battery include:

  • tapping a person on the shoulder to ask a question, and

  • injuries that occur in the normal course of a sport (since, by agreeing to play the sport, the participant has consented to contact that is common in the game)

Civil Versus Criminal "Assault" and "Battery"

As mentioned above, "assault" and "battery" can give rise to cases in both civil and criminal courts.

In civil lawsuits, "assault" and "battery" are considered intentional torts, meaning the defendant (the person being sued) meant to take the action that led to the harm suffered by the plaintiff (the person filing the personal injury lawsuit). The plaintiff in a civil case must only prove "by a preponderance of evidence" that the defendant is liable for damages caused by assault/battery. And if the plaintiff is successful, he or she may recover "damages" (monetary compensation) for physical and emotional harm, lost income, and other losses arising from the incident. (Learn more about Personal Injury Damages.)

In a criminal "assault" or "battery" case, the state government brings formal charges against the defendant, and tries to prove "beyond a reasonable doubt" (which is a tougher burden of proof than the one that must be met in civil cases) that he or she committed the assault/battery. The person who was harmed might be called as a witness, but the action is brought by "the people of" the state where the alleged crime occurred. If the defendant is found guilty, he or she will be subject to a number of different punishments that are usually spelled out in the state’s penal code (i.e. incarceration for a certain amount of time, imposition of fines, probation, community service, counseling).

Defenses to Assault and Battery

In both criminal and civil cases, a person who has otherwise committed an assault and/or battery might not be liable, if certain defenses apply. For example, if the "plaintiff" or the "victim" consented to being touched, and the touching did not exceed the scope of that consent, there may be no liability for battery. A person may also use reasonable force in self-defense -- or to defend another person -- in a manner that might otherwise constitute assault or battery. Under certain circumstances, an actor may also use reasonable force to defend his or her property.

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