Differentiating Assault and Battery

Although assault and battery are often used interchangeably, they are in fact two distinct crimes. Assault—which is called attempted battery in some jurisdictions—is a threat or physical act that results in the feeling of imminent harm or offensive contact, whereas battery is the physical act that results in that harm or contact. A defendant may be charged with only one of the crimes, though assault (which is a lesser charge) sometimes morphs into battery.

Assault and Battery Requirements

In most states, “aggravated assault” is when a perpetrator tries to cause severe injury to another, or attempts to cause injury with a deadly weapon. Sometimes assault and battery can be tried in civil court (ie: a personal injury tort), rather than in criminal law.

Battery, on the other hand, is typically charged when intentional or harmful touching is done to another person, without consent from the victim. Unlike assault, battery dooes not require any intent (though it often exists in battery cases). If someone acts in a criminally negligent or reckless manner, though, it may constitute as assault.

Assault and Battery Intent

Threats or threatening behavior can be considered assault, but battery is only included if that physical act is carried through. Assault and battery both require an “act” to be committed to a person. For instance, a typical assault requires an overt or direct act that would put a person in fear for their safety. Spoken words do not constitute an assault—the offender must back them up with actions. This is called “general intent,” wherein a person intended the actions to make up the assault.

For battery, an “offensive or harmful act” must be present. This can range from obvious attacks, such as punches or kicks, to even minimal contact. A victim does not need to be injured for battery to occur, so long as intentional, offensive contact is used.

Assault and Battery Defenses

Cases for assault and battery can range from obvious and simple, to extremely complex. The most common defense for assault and battery charges are as follows:

  • Self-defense: The accused must show: A) a threat of unlawful harm to themselves. B) a real perceived fear of harm to themselves. C) no harm or provocation on their part. D) no reasonable chance of retreating or escaping the situation. Even with these stipulations, an act of self-defense does not mean that any amount of force can be used. Also, even if the guidelines above are met, a defendant can still be found guilty of assault and battery.
  • Defense of Others: Similar to self-defense, except the person must have a real perceived fear of harm for another person.
  • Defense of Property
  • Consent: If an individual has consented, voluntarily, to a particular act, that same act cannot be asserted to constitute assault and battery.

Assault and Battery Penalties

Depending on the laws of the jurisdiction/state, the punishments for assault and battery widely vary. Punishments can range from fines to imprisonment, depending on the severity of the case. If the level of the case should rise to aggravated assault and battery, the penalties rise dramatically. Assault with a Deadly Weapon, for instance, can result in live imprisonment or the death penalty in some cases. Also, assault and battery committed on family members or others living with the perpetrator may be prosecuted under domestic abuse laws, and the punishments can be steeped for these cases.

Because of the varying circumstances, penalties, and severity of these cases, and because of the complex nature of assault and battery crimes, a defendant will likely need a very good attorney. This lawyer will be necessary in order to wade through the laws, stipulations, circumstances, and offenses in order to negotiate the best plea bargain or put up the best defense possible for his or her client.


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