- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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The crimes of assault and battery can be filed and prosecuted as either a misdemeanor or a felony, depending upon the nature and severity of the injuries to the victim.
This article covers the individual crimes of assault and battery, including the respective legal elements necessary to prove each of them. Also discussed is the crime of aggravated assault.
On the civil side, we discuss the distinguishing features between the criminal act with the civil tort of assault and battery.
Criminal Assault
Assault is defined as the threat of violence upon another person.
Criminal Assault – Words Are Not Enough
A person need not be injured to be the victim of assault. Words alone do not constitute an assault.
Some physical acts must also be combined with the intent to touch or harm another.
Criminal Battery
A criminal battery is legally defined as any harmful or offensive touching. A punch, grab, or improper bumping can constitute a battery if the act is done with intent to harm.
If the assault happens with the use of weapons such as a gun, knife, car, or any object used as a weapon, the crime may be charged as a felony assault with a deadly weapon. In most states, the consequence of such an assault is a felony and can result in prison time.
Defense To Assault and Battery
Self-Defense
To prevail on self-defense, the defendant must show that a “reasonable person” under similar circumstances would have felt threatened by such action. The person using self-defense is limited to using that degree of force reasonably necessary to prevent the assault.
When Battery is Confused with Assault
A battery is often confused with the crime of assault, which places the victim in the apprehension of an imminent battery.
A battery is usually preceded by an immediate assault, which is why when lawyers plead a battery in either civil or criminal cases, the actionable elements of an assault are almost always included.
Filing a Criminal Complaint with Police
As the victim of a criminal battery, you can file a criminal complaint with the local police department. It would then be up to law enforcement to determine the severity of the crime and whether it is worthy of an arrest and booking.
In most states, a simple battery is usually charged as a misdemeanor, especially if the perpetrator has no criminal history of violence.
If the injuries are severe enough, the prosecutor has the discretion to charge the battery as a felony.
The differentiating feature between a civil and criminal battery is that the touching required for a criminal battery requires actual and specific intent to harm or injure another.
Criminal Battery Without Assault
An assault can occur independently and without a physical touching. Most states have chosen to criminalize the threat of harm itself rather than requiring that the actual harm be physical.
Physical Act Required
Criminal assault, when charged alone, requires the defendant to take some actual act in furtherance of the threat of physical harm.
One example of such an act is the perpetrator that suddenly runs toward the victim as if to push the person off the subway platform and onto the train tracks. As you can imagine, this can be quite terrifying, especially if an oncoming train is approaching.
Similarly, a perpetrator in the process of robbing a bank while using an unloaded gun and physically pointing it at the head of a bank teller is guilty of criminal assault.
The physical act of pointing the weapon at a person would be sufficient to put almost anyone in immediate apprehension of imminent harm.
Fear of Harm Must Be Reasonable
The law requires that the victim’s fear be reasonable and not contrived. Stated another way, the act directed at the victim would put a reasonable person in fear of being physically harmed.
Federal Crime of Aggravated Assault & Battery
According to FBI statistics, in 2019, the United States had an estimated 821,182 aggravated assaults.
The FBI defines an aggravated assault as an unlawful attack by one person upon another to inflict severe or aggravated bodily injury.
According to the FBI, aggravated assaults usually involve the use of a weapon that can produce death or great bodily harm.
Criminal Battery Different from Civil Battery
In both criminal and civil law, the act of battery is by touching another person in a harmful or offensive manner without the other’s consent.
As you can see, the essential legal elements required to establish a civil battery are substantially the same as those needed to prove the crime of battery, except for one important distinction:
The requisite intent for a civil battery to occur is merely to touch or make contact without intending to harm the person. Should the unintentional act actually cause harm, it could result in a civil action which is usually under the legal theory of negligence. A simple careless act causing injury to another is the legal basis of most personal injury cases.
Consult A Criminal Defense Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Lawyer as soon as possible.
