An Assault is basically an act that puts another person in reasonable fear of imminent harmful or offensive contact. Most of the time, Assaults are nothing more than failed Battery attempts, where the Defendant tried to harm the Plaintiff, but the Plaintiff was able to avoid the harm. For example:
D throws a rock at P. P sees D throw the rock and ducks out of the way. D has committed an Assault.
However, you can commit an Assault without actually intending to harm anybody. As long as you make someone believe that you are about to touch them in a harmful or offensive way, you have committed an Assault. See
D points a gun at P. D knows that the gun is not loaded and has no intention of harming P. However, P believes the gun is loaded, and believes that D is about to shoot him. D has committed an Assault because he put P in reasonable apprehension of harmful contact, even though D never intended to actually harm P.
There is an important distinction between Assault and Battery to note here. In order for there to be an assault, the Plaintiff must be apprehensive of the act. In other words, he needs to be aware that it has taken place. Remember that in the Battery lesson you learned that Battery can occur even without the plaintiff's knowledge; for example the Plaintiff could even have been asleep. Not so with Assault! If the Plaintiff was unaware of it, there is no apprehension and no Assault. Here are examples:
- D throws a rock at P. P sees the rock coming at him and ducks out of the way. This is Assault because P apprehended an imminent harmful touching (the rock hitting him).
- D throws a rock at P. P is standing with his back to D and never sees the rock coming at him. The rock sails harmlessly by P's head. This is not assault because even though D intended to harm P, P never apprehended the harm.
Similarly, if the Plaintiff knows that the threat of force is a meaningless one, there is no assault. For example:
D points an unloaded gun at P and threatens to shoot him. If P knows that the gun is not loaded, there is no assault because there is no apprehension of immediate contact.
In order to make a case for Assault, a volitional act by the Defendant is required. A verbal threat alone does not constitute an Assault. An act must accompany the threatening words. This act can be any volitional, or non-reflexive, body movement such as banging on a door or pointing a gun. It is not the same as the volitional act you learned about in Battery, which referred to the volition of harmful touching. For assault, it can be any volitional act whatsoever which accompanies the threat. Here is an example:
- D says to P, "I am going to shoot you." This is not assault because it is verbal only.
- D, while putting his hand in his jacket, seemingly to get a gun, says to P, "I am going to shoot you." This is assault because putting his hand in his jacket is an accompanying volitional act.
Finally, the Plaintiff must be put in apprehension of immediate, or imminent harmful or offensive contact. the threat of future contact does not constitute assault. See
D pulls out a gun and says to P, “in twenty minutes, I will shoot you dead.” This represents the threat of a future touching and therefore does not amount to assault.
Keep in mind that, while a verbal threat needs to be accompanied by a volitional act in order to be an actionable assault, volitional acts do not need to be accompanied by verbal statements to be actionable assaults. However, please note that verbal statements can turn threatening actions that look like assaults into non-actionable threats. For example:
D pulls out a gun, points it at P and says, “if you weren’t my best friend’s brother, I’d shoot you right now.” Pulling out the gun by itself clearly would have been an actionable assault. However, D’s statement indicates that he, in fact, does not intend to harm P. Therefore, there is no actionable assault here. While this incident might have frightened P, there is no apprehension of imminent contact as far as the law is concerned.
In order for the plaintiff to have a cause of action for assault, the defendant must put the plaintiff in apprehension of imminent (immediate) harmful or offensive contact. The threat of future contact is not actionable as assault. For example:
- While pulling out a gun, D says to P, “I’m going to shoot you dead.” This is an actionable assault because D has put P in apprehension of imminent harmful contact.
- While pulling out a gun, D says to P, “I am going to give you twenty minutes to get my money, and then I’m going to shoot you.” This is not an actionable assault because this is a future threat which does not put P in apprehension of imminent harmful contact.
Finally, it should be noted, that Assault must be apprehension of contact to the Plaintiff himself. Apprehension of harmful touching of the Plaintiff's property does not constitute Assault.