Many people have heard the phrase, “You’re under arrest for assault and battery” on TV or in movies. The commonly heard phrase conjures up images of bar fights and parking lot brawls. These shows often leave out the legal definitions of those crimes. Many people do not know there are two separate legal terms of art at play. Assault is one, and battery is the other. The terms describe two separate legal concepts with distinct elements. Some states split them up while others combine the offences.
In most states, an assault or battery is committed when one person physically strikes or attempts to physically strike another, or when they act in a threatening manner to put another in fear of immediate harm. It is important to note that intent is a necessary element of these crimes. Someone usually will not be guilty of assault if they accidentally knock someone over. However, intentional pushing or shoving or unwanted fondling of breasts or buttocks can be forms of what is sometimes referred to as “simple” assault.
Many states also have a separate category for “aggravated” assault or battery. There are many ways to heighten assault. For example, causing severe injury, or using a deadly weapon can be aggravating factors that lead to heightened punishments. Some jurisdictions even consider intentionally harming vulnerable individuals like the elderly to be aggravated assault. Below is a more in-depth look at both offences and their elements, which helps explain how these two offences are so closely tied together.
Although the statutes defining battery will vary by jurisdiction, a typical definition for battery is the intentional offensive or harmful touching of another person without their consent. Under this general definition, a battery offence requires all of the following:
the touching must be harmful or offensive;
without the consent of the victim.
Battery: Intent Requirement
It may come as some surprise that a battery generally does not require any intent to harm the victim (although such intent often exists in battery cases). Instead, a person need only have an intent to contact or cause contact with another. Additionally, if someone acts in a criminally reckless or negligent manner that results in such contact, it may constitute an assault. As a result, accidentally bumping into someone, offensive as the “victim” might consider it to be, would not constitute a battery.
Battery: Act Requirement
The criminal act required for battery boils down to an offensive or harmful contact. This can range anywhere from the obvious battery where a physical attack such as a punch or kick is involved, to even minimal contact in some cases. Generally, a victim does not need to be injured or harmed for a battery to have occurred, so long as an offensive contact is involved. In a classic example, spitting on a victim does not physically injure them, but it nonetheless can constitute offensive contact sufficient for a battery. Whether a particular contact is considered offensive is usually evaluated from the perspective of the “ordinary person.”
The definitions for assault vary from state-to-state, but assault is often defined as causing or attempting to cause injury to someone else, and in some circumstances can include threats or threatening behaviour against others. One common definition would be an intentional attempt, using violence or force, to injure or harm another person.
Another straightforward way that assault is sometimes defined is as an attempted battery. Indeed, generally, the main distinction between an assault and a battery is that no contact is necessary for an assault, whereas an offensive or harmful contact must occur for a battery.
Assault: Act Requirement
Even though contact is not generally necessary for an assault offence, a conviction for assault still requires a criminal “act”. The types of acts that fall into the category of assaults can vary widely, but typically an assault requires an overt or direct act that would put the reasonable person in fear for their safety. Spoken words alone will not be enough to constitute an assault unless the offender backs them up with an act or actions that put the victim in reasonable fear of imminent harm.
For example, yelling threats at a person who is deaf and could not perceive the threat could still be an assault, whereas yelling threats over the phone to a person who is in a different state would not necessarily be an assault, as the threat of harm is not imminent (though this conduct might be the basis for a different crime, just not assault).
Assault: Intent Requirement
In order to commit an assault, an individual need only have “general intent.” This means that someone cannot accidentally assault another person, but it is enough to show that an offender intended the actions which make up an assault. The noteworthy distinction is that “I was just joking” is not a good defence to an assault by threat. The threat was knowingly communicated, regardless of the intent to threaten. Moreover, an intent to scare or frighten a different person (other than the actual victim) can be enough to establish assault charges, under the theory of transferred intent.
Most jurisdictions have combined assault and battery into a single offence. Because the two offences are so closely related and often occur together, this should probably come as no surprise. However, the basic concepts underlying the offences the terms describe remain the same.