Assault and Battery

A criminal battery is an unlawful use of force against another person. The actus reus of battery is simply using the force. Please note that the defendant does not actually have to injure the victim in order to be convicted of criminal battery. Further, the force does not necessarily have to be applied directly by the defendant. Rather, the force can be applied indirectly, as in a situation where the defendant forces someone else to do the touching or the touching is committed as the result of a force that the defendant sets in motion. For example:

Pedro throws a baseball at Nomar which hits Nomar in the head. In this situation, Pedro has not actually touched Nomar. However, he has indirectly touched Nomar because the touching was committed by a force, the baseball, that Pedro set in motion. Therefore, Pedro can be convicted of criminal battery.

Modern statutes have somewhat altered the definition of battery. First, modern statutes frequently require that the battery either result in an injury or that the touching is likely to be regarded as offensive. For example:

EXAMPLE (1): Pedro throws a baseball at Nomar’s head. The baseball hits Nomar but does not hurt him. Under the modern definitions of battery, Pedro would not be guilty of criminal battery because Nomar was not injured. If, however, the ball had hit Nomar and injured him, Pedro would be guilty of battery.

EXAMPLE (2): Joe touches Marilyn’s genitals without her consent. In this case, even though Joe’s contact with Marilyn may not have physically harmed her, Joe can be convicted of criminal battery because his contact is likely to be considered offensive.

As far as the mens rea for battery is concerned, negligence is sufficient for a conviction. In other words, if the defendant commits an act of battery intentionally, he can obviously be convicted. However, even where the defendant acted in a situation where he should have known that his conduct would cause the victim to be touched in a manner that constitutes battery, the defendant can be convicted of criminal battery. This is despite the fact that the defendant did not intend to commit the battery.

Consent of the victim can sometimes be used as a defense against a charge of battery. Although, the battery must be undertaken with no more force that was consented to. Also, consent as a defense will generally not be allowed when the battery causes or is intended to cause serious bodily injury.

Although, as with any other crime, the degrees of the crime vary widely from jurisdiction to jurisdiction, battery is generally divided into two categories; simple battery and aggravated battery. Simple battery is usually a misdemeanor. Aggravated battery, which is defined as:

1. battery committed with the intent to kill,
2. battery that causes serious harm to the victim, or
3. battery committed with a deadly weapon,

is a felony.

Criminal assault is divided into two categories:

The first is the attempt to commit a battery. 

The second is the intentional placing of the victim in fear of a battery. (The second category is that same as the tort of assault.)

At common law, the only kind of criminal assault was the former category (attempt to commit battery). For this crime, the mens rea is that the defendant must have intended to use force against the victim. Thus, a defendant, at common law, could not be convicted of reckless assault. There was no such thing. The mens rea had to be intent.

As far as the actus reus is concerned, because assault was attempted battery, the rules of attempt applied so that, in order to be convicted, the defendant must have taken a step toward committing the actual battery.

The second category of assault involves the intentional placing of the victim in fear of immediate bodily harm. Under this category of assault, the mens rea is the intent to put the victim in fear. Thus, in order for the prosecution to win a conviction for this kind of assault, the prosecution must prove that the victim was actually aware of the threat and that he actually experienced fear of imminent harm. Please note that the standard used to determine what does or does not put someone in fear of imminent harm is objective. That is to say, the defendant can be convicted of assault if his actions would have put a reasonable person in apprehension of imminent harm.

As in the tort of assault, mere words alone are not enough to qualify as criminal assault. However, words accompanied by actions can be sufficient for a conviction.

As with criminal battery, criminal assault is divided into simple assault and aggravated assault. Simple assault is a misdemeanor. However, aggravated assault, which is defined as assault with the intent to kill or assault with a deadly weapon, is a felony.