Assault and Battery

• Author: Jeffrey Lehman, Shirelle Phelps

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Two separate offenses against the person that when used in one expression may be defined as any unlawful and unpermitted touching of another. Assault is an act that creates an apprehension in another of an imminent, harmful, or offensive contact. The act consists of a threat of harm accompanied by an apparent, present ability to carry out the threat. BATTERY is a harmful or offensive touching of another.

The main distinction between the two offenses is the existence or nonexistence of a touching or contact. While contact is an essential element of battery, there must be an absence of contact for assault. Sometimes assault is defined loosely to include battery.

Assault and battery are offenses in both criminal and TORT LAW; therefore, they can give rise to criminal or civil liability. In CRIMINAL LAW, an assault may additionally be defined as any attempt to commit a battery.

At COMMON LAW, both offenses were misdemeanors. As of the early 2000s, under virtually all criminal codes, they are either misdemeanors or felonies. They are characterized as felonious when accompanied by a criminal intent, such as an intent to kill, rob, or rape, or when they are committed with a dangerous weapon.

Intent

Intent is an essential element of both offenses. Generally, it is only necessary for the defendant to have an intent to do the act that causes the harm. In other words, the act must be done voluntarily. Although an intent to harm the victim is likely to exist, it is not a required

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element of either offense. There is an exception to this rule for the attempted battery type of criminal assault. If a defendant who commits this crime does not have an intent to harm the victim, the individual cannot be guilty of the offense.

Defenses

Consent In almost all states, consent is a defense to civil assault and battery. Some jurisdictions hold that in the case of mutual combat, consent will not suffice and either party may sue the other. Jurisdictions also differ on the question of whether consent is a defense to criminal assault and battery.

Consent must be given voluntarily in order to constitute a defense. If it is obtained by FRAUD or duress or is otherwise unlawful, it will not suffice. When an act exceeds the scope of the given consent, the defense is not available. A person who participates in a football game implies consent to a certain amount of...