ASSAULT AND BATTERY

ASSAULT AND BATTERY

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 appre-
hension 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 misde-
meanors. 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
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 juris-
dictions hold that in the case of mutual combat,
consent will not suffice and either party may sue
the other. Jurisdictions also differ on the ques-
tion 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 per-
son who participates in a football game implies
consent to a certain amount of physical contact;
however, the individual is not deemed to con-
sent to contact beyond what is commonly per-
mitted in the sport.
Self-Defense Generally, a person may use
whatever degree of force is reasonably necessary
for protection from bodily harm. Whether this
defense is valid is usually determined by a jury.
A person who initiates a fight cannot claim SELF-
DEFENSE unless the opponent responded with a
greater and unforeseeable degree of force.
When an aggressor retreats and is later attacked
by the same opponent, the defense may be
asserted.
The use of DEADLY FORCE in response may
be justified if it is initially used by the aggressor.
The situation must be such that a reasonable
person would be likely to fear for his or her life.
In some states, a person must retreat prior to
using deadly force if the individual can do so in
complete safety. A majority of states, however,
allow a person to stand his or her ground even
though there is a means of safe escape.
Whether the degree of force used is reason-
able depends upon the circumstances. The usual
test applied involves determining whether a rea-
sonable person in a similar circumstance would
respond with a similar amount of force. Factors
such as age, size, and strength of the parties are
also considered.
Defense of Others Going to the aid of a
person in distress is a valid defense, provided the
defender is free from fault. In some states, the
defender is treated as though he or she stands in
the shoes of the person protected. The
defender’s right to claim defense of others
depends upon whether the person protected had
a justified claim of self-defense. In a minority of
jurisdictions, the defense may be asserted if the
defender reasonably believed the third party was
in need of aid.
Defense of Property Individuals may use a
reasonable amount of force to protect their
property. The privilege to defend one’s property
is more limited than that of self-defense because
society places a lesser value on property than on
the integrity of human beings. Deadly force is
usually not permitted. In most states, however,
deadly force might be justified if it is used to
prevent or stop a felony. An owner of real prop-
erty or a person who rightfully possesses it, such
as a tenant, may use force against a trespasser.
Generally, a request to leave the property must
be made before the application of force, unless
the request would be futile. The amount of force
used must be reasonable, and, unless it is neces-
sary for self-defense, the infliction of bodily
harm upon an intruder is improper. Courts have
traditionally been more liberal in allowing the
use of force to protect one’s dwelling. Subse-
quent cases, however, indicated that there must
be a threat to the personal safety of the occu-