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Assault and Battery


Assault and battery are two distinct common law crimes that exist in all American jurisdictions, usually as statutory misdemeanors. Battery involves actual physical contact with the victim and is defined as conduct producing a bodily injury or an offensive contact. Assault, on the other hand, does not include physical contact with the victim and is classified as either an attempt at battery or an intentional frightening of another person. Although the term assualt and battery is frequently used when a battery has been committed, one who commits a battery cannot be punished for committing an assault, since the lesser offense of assault blends into the actual battery.


Battery, which requires physical contact with the victim, is broken down into three separate elements: the defendant's conduct, his mental state, and the harm done to the victim. Although many statutes do not define battery with specificity, or even list these elements, it is a widely recognized principle of law that each of them must be met.

Conduct. A defendant's conduct in a case of battery encompasses the physical acts he performs in committing the crime. Battery may be committed either by directly touching a person or indirectly applying force to him. It is clear that intentionally striking someone should be classified as a battery, but it is less clear that a battery charge should result from an injury not directly caused by the defendant. The latter result is often reached by modern courts, however. Consequently, one may commit a battery by causing injury through poisoning. One may also be liable for directing another person to make a physical contact. Battery, therefore, may result when a person is forced to touch something that is repulsive to him or when one is injured in a dangerous situation intentionally created by the defendant. Additionally, if the other elements of battery are present, some cases have held persons criminally responsible when neglect of a duty to act causes injury to anotherfor example, when a lifeguard fails to warn swimmers of dangerous undercurrents.

Mental state. A defendant is held to be culpable in a battery charge if he acts with either an intent to injure or with criminal negligence. In some jurisdictions it is sufficient if he commits an unlawful act, regardless of his intent. Culpability is apparent when one acts with intent to injure, but one is usually not liable for committing a battery when he possesses no intent to injure. Hence, it is not a battery to grab someone in order to rescue him or to prevent him from doing something dangerous.

The use of criminal negligence to supply the requisite intent for battery is not always accepted, for negligence is not normally sufficient to prove the mental state needed for the criminal act. Some courts state that criminal negligence supplies the intent, thus equating this negligence with a simple intent to injure. Other states have statutes that make battery a minor misdemeanor when one acts in reckless disregard of the risk of causing injury to another.

If criminal negligence is held sufficient to warrant a charge of battery, the term negligence requires definition. For criminal liability, more than ordinary lack of due care should be required. Most jurisdictions defining batteries based on negligence require actions that create an unreasonable and high risk of harm to others. Although there is no single definition, it is generally accepted that the risk should be one a reasonable person would be clearly aware of, even if the defendant does not perceive it. It may seem wrong to criminally punish someone for harmful acts he does not intend. Nevertheless, one should be responsible for actions that would be recognized as harmful by most persons and that outrage and injure the general public.

In only a few jurisdictions is the unlawful-act standard applied to battery cases. The question of intent is again applicable, in connection with both the injury and the act itself. One who is consciously acting unlawfully should be responsible for the results of his actions, regardless of his intent. However, if he is unaware that he is acting unlawfully, it is more difficult to argue that criminal liability should automatically follow. Some states have dealt with this problem by ruling that liability results if the act is bad in itself (malum in se ) but not if it is simply prohibited conduct (malum prohibitum ); malum prohibitum acts, however, may be sufficient if the defendant is either criminally negligent or intends to cause injury.

Harm to the victim. The final element necessary for battery is the harmful result to the victim. This element is satisfied by virtually any type of bodily injury; indeed, many states have statutes that permit any offensive touching to qualify as a battery. Some cases have held that forcing a child to touch parts of the defendant's body created criminal responsibility, even when the defendant himself did not do any actual touching. In such situations, the defendant is viewed as having caused the act just as if he had touched the victim, since he initiated and controlled the situation, and the victim felt personally violated by the defendant.

Aggravated battery. The crime of aggravated battery, punishable as a felony and specifically defined by statute, exists in many states. Examples of such crimes are actions taken with intent to kill or to rape. Usually, the defendant must have intended to cause the specific result; otherwise, the crime is considered as a regular battery charge. Batteries based on criminal negligence are generally not considered sufficiently egregious to warrant a felony charge. Where a defendant did not intend to commit a felony, it seems unjust to convict him of the more serious charge.


An assault is classified as either an attempted battery or an intentional frightening of another person; physical contact is not an element of the crime in either of these situations. Many states do not define assault, and some states list it under attempt rather than under assault.

Attempted battery. In assaults resulting from attempted battery, there must be a specific intent on the part of the defendant to cause injury. The theory behind this requirement is that one cannot be guilty of attempting a battery if he lacks the intent to commit a battery. In some states there is an additional requirement of a present ability to commit the crime, on the assumption that a defendant cannot have attempted a battery if he was unable to act at the time.

Intentional frightening. Most states classify as assaults those acts that are designed to frighten another. Thus, one is liable for committing an assault when, intending to cause another person reasonable apprehension of immediate bodily harm, one acts to create such apprehension. In such assaults the defendant does not plan actually to harm the victim, but merely to frighten him. Some states do not classify an intentional frightening as a crime of assault, believing that such acts are not serious enough to warrant criminal punishment. There is a strong argument in favor of the viewpoint that intentional frightening should be left to tort law, where the defendant is held responsible more for causing harm to the plaintiff than for acting dangerously.

In the majority of states, the first requirement of intentional frightening as an assault is an actual purpose to frighten. It is not necessary that one have the ability to harm someone, because this assault focuses on intent rather than on present ability. Thus, when one points an unloaded gun at another with the intent to frighten, one is guilty of committing an assault even though it is impossible for him to fire.

A second requirement for a successful assault charge is that the victim actually be frightened by the defendant's actions. In addition, the defendant's conduct must be of the sort to arouse a reasonable apprehension of bodily harm in the average person. Thus, it is not sufficient to say something that frightens another, if a reasonable person would not be placed in fear of bodily harm by such conduct.

Proving fright on the part of the victim can be difficult. Some courts have created a distinction between immediate fear and reasonable apprehension stating that reasonable apprehension may be a response of which the victim is not immediately aware. One may be so startled by the defendant's acts that one's reaction is delayed, but this should not automatically mean that one is not frightened. When a person is threatened with a gun, it is irrelevant whether the gun is loaded. Just as an unloaded gun may be used to fulfill the intent requirement, it may also serve to cause apprehension. If a gun is used, the victim's apprehension is normally proven unless it is shown he knew the gun was unloaded.

Conditional assault. In addition to the above two types of assault, there is a third category, that of conditional assault. This is an assault that arises only under certain conditions, usually failure of the victim to act as the defendant directs. If a defendant threatens to shoot another unless that person leaves the property, he is guilty of committing an assault even though the victim departs. The defendant is not protected from an assault charge simply because the victim complied with the condition. The fact that the defendant would have harmed the victim if the condition had not been satisfied is enough to supply the requisite intent.

Aggravated assault. As with batteries, assaults may be charged in an aggravated form. Acts such as assault with intent to kill or to rape are punishable as felonies rather than misdemeanors. Many statutes provide that the use of a deadly weapon automatically creates an aggravated assault. What constitutes a deadly weapon, however, is not always certain. Most courts hold that a dangerous weapon per se is an instrumentality designed and constructed to produce death or great bodily harm. Thus, a riding crop is not a dangerous weapon per se even though it may be used to inflict excessive bodily harm. The riding crop may still be a dangerous weapon, however, if the trier of fact decides that it has been used in a way that makes it dangerous. Guns are almost always considered dangerous weapons per se.

Defenses to assault and battery

Although one is usually liable for committing either an assault or a battery when he commits the elements discussed above, there are defenses to both crimes. Perhaps the most popular defense is the claim of self-defense. The defendant will argue that he committed the assault or the battery only because it was necessary to protect himself from attack. In other situations the defendant may seek to prove that he acted properly to protect another from harm. Although that person may have been touched in a forcible or offensive way, the defendant's actions are justified because they were prompted by a desire to help or rescue the person who was in a dangerous situation.

The consent defense is claimed where the victim permits the defendant to commit certain acts. The issue of consent often arises in cases involving sexual assaults, where the victim alleges that an attack occurred, and the defendant claims consent was given. In other areas, consent may also act as a defense to a charge of assault and battery, such as a situation in which the defendant grabs someone while playacting. Many courts, however, hold that consent is no defense when the act violates public policy, especially when the battery is severe. Hence, a battery is normally committed when two people agree to fight each other.

The issue of consent has become very important in the areas of sports and domestic relationships. In sports, the issue is whether excessive violence in a game exposes players to criminal liability. Although the elements of battery are present, it is argued that the players consent to these actions before the game starts. Consent is presumed by the players' participation in the sport. The question remaining is to what specific acts the players have given their consent. When some participants become rougher than may be reasonably necessary, can it be assumed that an injured player consented to this violence? There is as yet no definite answer to this, but as more sports-related prosecutions are brought, the answers will undoubtedly be forthcoming.

Interest in prosecuting domestic batteries has increased greatly as awareness of the problem developed. It is clear that in most domestic battery cases there is no actual consent given, so that consent should not operate as a defense to a criminal offense. The mere fact that the defendant was married to the victim should not operate as a defense. Still, government officials are properly reluctant to prosecute routinely in this area because of the presence in many cases of more appropriate forums for the resolution of disputes.

The common law crimes of assault and battery raise many interesting and difficult questions involving the elements of the offenses, the defenses to them, and the situations in which they should be charged. Perhaps most important is the need to clarify the societal interest in imposing criminal sanctions on such activities. Particularly when the defendant has not seriously injured the victim or did not intend adverse consequences, the civil tort remedy may be a preferable way of dealing with the problem.

Paul Marcus

Dan M. Kahan

See also Attempt.


American Law Institute. Model Penal Code: Tentative Draft No. 10. Philadelphia: ALI, 1960.

American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Commentaries. 3 vols. Philadelphia: ALI, 1985.

Hanson Calvert, Linda S., and Dernis, Craig. "Revisiting Excessive Violence in the Professional Sports Arena: Changes in the Past Twenty Years?" Seton Hall J. Sport L. 6 (1996): 127166.

Keeton, W. Page. Prosser and Keeton on the Law of Torts. 5th ed. St. Paul: West, 1984.

Lafave, Wayne R., and Scott, Austin W., Jr. Handbook on Criminal Law. St. Paul: West, 1972.

Note. "Consent in Criminal Law: Violence in Sports." Michigan Law Review 75 (1976): 148179.

Perkins, Rollin M. "An Analysis of Assault and Attempts to Assault." Minnesota Law Review 47 1962): 7191.

. "Non-homicide Offenses against the Person." Boston University Law Review 25 (1946): 119206.

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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 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.batteryis 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 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.


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 physical contact; however, the individual is not deemed to consent to contact beyond what is commonly permitted 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 reasonable depends upon the circumstances. The usual test applied involves determining whether a reasonable 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 property 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 necessary 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. Subsequent cases, however, indicated that there must be a threat to the personal safety of the occupants.

The states are divided on the question of whether a person who is legally entitled to property may use force to recover possession of it. In most jurisdictions, a landowner is not liable for assault and battery if the owner forcibly expels someone who is wrongfully on the property. The owner must not, however, use excessive force, and the fact that the person may not be held civilly liable does not relieve the owner of criminal liability. In some states, the use of force against a person wrongfully in possession of land is not permitted unless such person has tortiously dispossessed the actor or the actor's predecessor in title.

If possession of real or personal property is in dispute, the universal rule is that force cannot be used. The dispute must be settled by a court.

With respect to personal property, the general view is that an owner may not commit an assault or battery upon the wrongdoer in order to recover property. A majority of jurisdictions recognize the right of an owner in hot pursuit of stolen property to use a reasonable amount of force to retrieve it. In some states, stolen property may be taken back peaceably wherever it is found, even if it is necessary to enter another's premises. In all cases, the infliction of an unreasonable amount of harm will vitiate the defense.

Performance of Duty and Authority A person may use reasonable force when it becomes necessary in the course of performing a duty. A police officer, for example, may use force when apprehending a criminal. In some jurisdictions, private citizens may also use reasonable force to stop a crime being committed in their presence. Certain businesses, such as restaurants or nightclubs, are authorized to hire employees who may use reasonable force to remove persons who disturb other patrons. Court officers, such as judges, may order the removal of disruptive persons who interfere with their duties.

Persons with authority in certain relationships, such as parents or teachers, may use force as a disciplinary measure, provided they do not exceed the scope of their authority. Punishment may not be cruel or excessive.


The law considers an assault and battery to be an invasion of the personal security of the victim for which the wrongdoer is required to pay for damages. The determination of the amount of damages to which a victim might be entitled if a defendant is found civilly liable is usually made by a jury. Generally, a plaintiff is entitled to compensatory damages that compensate for injuries that are both directly and indirectly related to the wrong. Examples of compensatory damages include damages for pain and suffering, damages for medical expenses, and damages for lost earnings resulting from the victim's inability to work. Nominal damages, given although there is no harm at all, or merely a slight one, may also be awarded in an assault and battery action. Some jurisdictions allow the award of punitive damages. They are often given when the offense was committed wantonly or maliciously to punish the defendant for the wrongful act and to deter others from engaging in similar acts in the future. The defendant might additionally be subject to criminal liability.

If a defendant is found criminally liable, the punishment is imprisonment, a fine, or both. The amount of time a defendant must serve in prison depends upon the statute in the particular jurisdiction. When the offense is committed with an intent to murder or do serious harm, it is called aggravated assault and battery. An aggravated assault and battery is often committed with a dangerous weapon, and it is punishable as a felony in all states.

further readings

Brewer, J. D. 1994. The Danger from Strangers: Confronting the Threat of Assault. Norwell, Mass.: Kluwer Academic.


Hot Pursuit; Nominal Damages; Personal Property; Punitive Damages; Real Property.

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assault and battery

assault and battery in law, the action of threatening a person together with the action of making physical contact with them.

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