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Assault and Battery

Assault and Battery

Assault and battery are intentional torts, which means that both assault and battery are the result of an intentional act on the part of a tortfeasor (person who commits a tortious act). Because they are both torts, an assault or battery may serve as the basis for a civil lawsuit

However, every state also has criminal statutes for assault and battery. This means that both acts can result in prosecution by state courts, which may result in fines and jail time for the aggressor. 

Although both civil and criminal assault and battery share similar legal requirements of proof, many criminal statutes may vary the specific conduct and intent that is necessary to prosecute them as a crime. In short, an assault is an attempt or threat made by a person that puts another person in apprehension of imminent bodily harm, while battery is the act of making contact with another individual in a harmful or offensive manner. 

Thus, battery is essentially the logical extension of an assault, or a completed assault. For example, picking up a pile of rocks and throwing them at a person, but not hitting them, is an assault; whereas, the actual physical contact of the rocks with the person's body, is a battery. 

What Is Aggravated Assault and Battery?

The crime of aggravated assault and battery essentially carries the same meaning as a standard criminal assault and battery offense with one exception: certain conditions must be present during the commission of this crime.

These conditions are known as “aggravating factors”, which are usually elements that serve to increase the severity of the offense. Each state has its own laws which prescribe the types of conditions that will qualify as an aggravating factor.

For example, if a defendant uses a deadly weapon to commit assault and battery on another individual, then the deadly weapon would constitute the sort of factor that would convert the criminal charges into the aggravated version of this offense. Another example of a factor that would turn the crime of assault and battery into an aggravated offense is if the defendant injures a victim who is considered to be a vulnerable person in the eyes of the law, such as:

  • A child;
  • A pregnant woman; or
  • An elderly individual.

In addition, committing an assault and battery against an officer of the law is another condition that will transform the standard elements of this crime into an aggravated assault and battery offense. This is true even though a police officer is not considered to be a vulnerable person in the eyes of the law, but more likely has to do with the fact that they are enforcers of the law.

Lastly, it should be noted that the majority of states classify aggravated assault and battery as a felony offense, as opposed to a misdemeanor. Accordingly, a defendant who is convicted of committing aggravated assault and battery will most likely receive a punishment that is reserved for felony crimes, such as having to pay large criminal fines and/or serving a prison sentence of at least one full year and possibly longer.

What is Needed to Charge a Person with Assault and Battery?

As noted above, the requirements that need to be met to charge a person with assault and battery vary by jurisdiction. Further, the requirements needed to prosecute someone criminally for assault and battery differ from the requirements necessary needed to prove a civil case. This means it is important to consult with your local jurisdiction's civil and criminal statutes before bringing a civil or criminal case against someone. 

Typically, the elements for a civil assault and criminal assault are very similar. The elements that must be proved in order for a plaintiff to succeed in a civil suit for assault are as follows:

  • There must be an intentional attempt or threat to inflict injury on a person. This means that words alone, like saying “I am going to hurt you,” are often not enough to constitute an assault, unless the aggressor backs them up with an action that puts the victim in reasonable fear of imminent harm, such as picking up and brandishing a weapon;
  •  The harm threatened must be apparent. This means that threatened harm must be possible, meaning that calling someone on the phone from a different state and threatening to punch them would be insufficient; and 
  • The victim must be in reasonable apprehension or fear of imminent bodily harm. For example, if a person that weighed 100lbs told a professional heavyweight boxer that they were going to punch them in the face, the professional boxer may not be in fear of imminent contact, because the person might be non-threatening to them.

Unlike assault, battery requires the defendant make physical contact with the victim. Similarly to assault, the elements required to prove civil battery are typically the same as for criminal battery. In order to succeed in a civil suit for battery, you must typically prove the following elements:

  1. That there was a harmful or offensive intentional act made by a defendant;
  2. That resulted in a touching or application of force to another person; and
  3. Without that person's consent or permission. 

Importantly, there is no requirement that the defendant must intend to have made physical contact with the victim for a battery to occur; only that they intended to cause imminent apprehension of fear of physical harm in the victim that resulted in contact. 

For example, suppose that a person throws a baseball at someone across a field in order to scare them. If that baseball ends up hitting that person in the face, would likely be charged with battery or sued for civil battery

What Is Assault and Battery With a Deadly Weapon?

As previously mentioned, when a defendant uses a deadly weapon to commit assault and battery against another person, they can be charged with the felony offense of aggravated assault and battery. Some examples of items that may meet a state's legal definition of a “deadly weapon” include the following:

  • Guns and other firearms;
  • Explosive devices;
  • Poisons, toxins, or other hazardous materials;
  • Knives and similarly sharp instruments;
  • Different types of weapons, such as clubs, bats, nunchakus, or brass knuckles; and
  • In some instances, feet or hands if a defendant has had special training (e.g., serves in the military, is a professional boxer, or is a black belt in some form of martial arts).

As for states that divide assault and battery into two separate crimes, it might not matter whether a defendant used a fake or an actual weapon to intimidate their victim.

For example, suppose that a person reasonably believed that the defendant was pointing a real gun at them, but the gun was actually a toy. In such a case, the defendant can still be charged and convicted of aggravated assault if they deliberately intended to make it seem as if they were threatening the person with a real gun.

What Is Assault and Battery Against a Child, Woman, or Police Officer?

As previously mentioned, committing assault and battery against individuals with certain traits can raise the level of this crime to that of a felony offense, which is known as aggravated assault and battery. In such scenarios, the crime becomes more serious based on the type of victim who is harmed, rather than focusing on whether a deadly weapon or other instrument was used.

Again, if an assault and battery is committed against a child, a pregnant woman, an elderly person, or a police officer, it will automatically result in aggravated assault and battery charges. When a defendant is charged with committing aggravated assault and battery against any of these parties, they will likely face the kinds of punishments that are reserved for felony crimes like a prison sentence.

In addition, if any of the parties discussed within this section are also incapacitated, defenseless, or suffer extreme harm due to a defendant's conduct, then this will also transform the crime into a felony offense. In fashioning an appropriate sentence, a court may consider certain factors, including:

  • The height of the victim;
  • The weight of the victim;
  • The victim's gender; and
  • The separate abilities possessed by both the defendant and the victim to fight or defend themselves.

What Can I Do if I Am a Victim of an Assault and Battery?

Most importantly, if you are in a situation where you have suffered from an assault or battery, you should immediately contact the police and file a report for your safety. Often, criminal assaults and batteries will result in the victim obtaining a temporary restraining order or emergency protective order, in order to protect them from any future attempts of assault or battery made by the defendant. 

Further, a police report will be useful as evidence to prove fault for any civil claim made by the victim to recover from damages suffered from an assault or battery. 

Additionally, if you have suffered from an assault or battery, you may be eligible to receive funds from the “Victim Compensation Fund.” Victim compensation funds are provided through a government program in order to reimburse victims of violent crimes, such as assault or battery, as well as their families for out-of-pocket expenses and medical bills. 

Every state has some sort of victim compensation program; thus, it is important to look up the requirements for receiving funds through your local state's program. Typically, victim compensation funds will pay for medical and dental expenses, lost wages, counseling costs, or in severe cases funeral or burial expenses. 

What Should I Do if I Have Been Charged with Assault and Battery?

If you have been charged with assault and battery, you should immediately contact a well qualified and experienced criminal defense attorney to guide you through the legal process and help you assert any possible defenses. 

If you have been civilly sued for assault or battery, you will likely be facing a demand made by a person for monetary compensation for their injuries. This means that you will have to legally respond to a civil lawsuit, once served, typically within 30 days, and deny the charges or assert any defenses available to you. For example, one defense available may be that the person consented to you touching them, such as in a game of football or martial arts. 

However, if you there is a criminal claim brought against you, you may be faced with criminal fines, jail time, or both. It is very important to contact a criminal defense attorney immediately in these matters. In most cases, you may have already been arrested for criminal assault and battery, and charges will be brought against you. 

Typically, the criminal process is that you will first be arrested or taken into police custody; then you will be booked, or entered into the police system and placed in a holding cell. Next, you may be able to post bail; then an arraignment will be held and you will be read your criminal charges and be asked to enter your plea. Finally, if there is no plea bargain a preliminary hearing will be held where a judge will determine whether there is sufficient evidence to charge you with a crime. 

It is important to note that both civil and criminal charges may be brought against you simultaneously, therefore, it is important to consult with a criminal defense attorney and/or a personal injury defense attorney immediately to help you navigate the legal process of both claims. 

Can I Be Sued by the Victim for an Assault and Battery?

As noted above, a battery is the logical extension of an assault. Many jurisdictions define assault as an attempted battery, or as the intentional creation of a fear of imminent harm in the victim. Thus, battery charges are almost always brought concurrently with assault into a single charge or claim, often referred to as assault and battery. However, different elements must be proven by the victim for each claim. 

Thus, it is important to note the different requirement for assault and battery. For example, if you were recklessly swinging a bat around, and you made contact with the back of a person's head, meaning they were not in fear of imminent harm because they could not see you, they may succeed on their claim of battery, but not on their claim of assault. 

What are Some Civil and Criminal Defenses to an Assault and Battery Charge?

In both civil and criminal cases, a person who has committed an assault or battery might not be held liable for doing so, if certain defenses apply. 

The following is a list of defenses that may apply to civil or criminal assault and battery charges:

  • Self-Defense: The most well-known defense to assault and battery is that the defendant was acting in self-defense. This means that the defendant was the person initially attacked by the plaintiff and committed assault or battery to protect themselves. This may also open the plaintiff to a counter-suit for assault and battery by the defendant. Further, a person may also use reasonable force to defend another person in some cases;
  • Privilege: Some defendants may have a privilege to commit an assault or battery in some cases. For example, police officers have a privilege to use force to place a suspect under arrest;
  • Consent: In some cases a plaintiff may have consented to being in a place where the plaintiff would be assaulted or touched. For example, if the plaintiff was actively participating in a contract sport or at a sports event where the possibility of being hit by an object was a known risk, such as at a baseball game; or
  • Denial of Elements: As noted above, a victim must be able to prove all of the required elements of an assault and battery. Thus, when a defendant disproves one of the required elements, the charges or claims against them will fail. 

Can Hiring an Attorney Help with Assault and Battery Claims?

Given how frequently the term “assault and battery” is used in popular culture, many people have been led to believe that assault and battery is a simple, straightforward charge. However, this would not be an accurate assumption. In fact, assault and battery cases can actually be quite complex. The laws surrounding assault and battery issues often vary by jurisdiction and their applications can change based on the facts of a single case. Thus, if you are facing criminal charges for assault and battery, then it is strongly recommended that you hire a local criminal defense lawyer for further legal advice. An experienced criminal defense attorney will be able to perform legal research to see if there are any defenses available that you can raise against the charges in your case. Your lawyer will also be able to assist you in navigating the criminal justice system and can provide legal representation in criminal court. In addition, your lawyer can apprise you of your legal rights as a criminal defendant under the laws in your state and can make sure that your interests are protected either in court or during negotiations with the prosecutor for a plea deal. Finally, if your initial trial has already ended and you need to either appeal the decision or require representation at your sentencing hearing, your lawyer can assist you with these two legal procedures as well.

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