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| | [[Category:Politics and social sciences]] | | [[Category:Politics and social sciences]] |
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| | + | '''Assault''' is a [[crime]] of [[violence]] against another [[human|person]]. In some [[jurisdiction]]s, including [[Australia]] and [[New Zealand]] assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the [[United States]], [[England and Wales]], assault refers only to the threat of violence caused by an immediate show of force. The actual violence is [[battery (crime)|battery]], though this charge doesn't exist in all states and provinces. Simple assaults that do not involve any [[Aggravation (legal concept)|aggravation]] such as use of a deadly [[weapon]] are distinguished from aggravated assaults. |
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| − | | + | ==Definition== |
| − | '''Assault''' is a [[crime]] of [[violence]] against another [[human|person]]. In some [[jurisdiction]]s, including [[Australia]] and [[New Zealand]] assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the [[United States]], [[England and Wales]], assault refers only to the threat of violence caused by an immediate show of force. The actual violence is [[battery (crime)|battery]], though this charge doesn't exist in all states and provinces. '''Simple assaults''' that do not involve any [[Aggravation (legal concept)|aggravation]] such as use of a deadly [[weapon]] are distinguished from aggravated assaults.
| + | Depending on jurisdiction, assault can either be physical violence against another person or the perceived threat of said violence. It is classified as a misdemeanor in America, unless committed on a [[law enforcement]] officer. The more serious crime of aggravated assault is treated as a felony. |
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| − | Assault is often defined to include not only violence, but any physical contact with another person without their consent. When assault is defined like this, exceptions are provided to cover such things as normal social behavior (for example, patting someone on the back).{{Fact|date=April 2007}}
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| − | [[English law]] makes distinctions based on the degree of injury, between:
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| − | * [[common assault]] (which includes even the most minor assault)
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| − | * assault occasioning [[actual bodily harm]] (ABH)
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| − | * assault occasioning [[grievous bodily harm]] (GBH)
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| − | In most jurisdictions, an assault occasioning grievous bodily harm (or its equivalent) may amount to [[murder]] in certain circumstances.
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| − | ==American jurisprudence==
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| − | American [[common law]] has traditionally defined assault as an attempt to commit a [[battery (crime)|battery]].
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| − | Assault is typically treated as a [[misdemeanor]] and not as a [[felony]] (unless it involves a [[law enforcement]] officer). The more serious crime of aggravated assault is treated as a felony.
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| | Four elements were required at common law: | | Four elements were required at common law: |
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| | # Upon another. | | # Upon another. |
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| − | As the criminal law evolved, element 1 was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states.
| + | In many [[common law]] jurisdictions, the [[crime]] of '''battery''' involves an [[injury]] or other [[contact]] upon the [[person]] of another in a manner likely to cause [[bodily harm]]. Battery is often broken down into gradations for the purposes of determining the severity of punishment. For example: |
| | + | *''Simple battery'' may include ''any'' form of non-consensual, harmful or insulting contact, regardless of the injury caused. Criminal battery requires an ''intent'' to inflict an injury on another, as distinguished from a tortious battery. |
| | + | *''[[Sex]]ual battery'' may be defined as non-consensual touching of the intimate parts of another. |
| | + | *''Family violence battery'' may be limited in its scope between persons within a certain degree of relationship: statutes with respect to this offense have been enacted in response to increasing awareness of the problem of [[domestic violence]]. |
| | + | *''Aggravated battery'' is generally regarded as a serious offense of felony grade, involving the loss of the victim's limb or some other type of permanent disfigurement of the victim. As successor to the common law crime of [[Mayhem (crime)|mayhem]], this is sometimes subsumed in the definition of [[aggravated assault]]. |
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| − | Modern American statutes define assault as:
| + | In some jurisdictions, battery has recently been constructed to include directing bodily secretions at another person without their permission. In some jurisdictions this automatically is considered aggravated battery. |
| − | # an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or,
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| − | # negligently causing bodily injury to another with a deadly weapon.
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| − | Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.
| + | As a first approximation to the distinction between battery and [[assault]]: |
| | + | * the [[actus reus|overt behavior]] of an assault might be A advancing upon B by chasing after him and swinging a fist at his head, while |
| | + | * that of an act of battery might be A actually striking B. |
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| − | States vary whether it is possible to commit an "attempted assault" since it can be considered a double [[inchoate offense]].
| + | ==Important Concepts== |
| | + | ===''Actus reus''=== |
| | + | Both in the [[common law]] and under [[statute]], the ''[[actus reus]]'' ([[Latin]] for "guilty act") of a common assault is committed when one person causes another to apprehend or fear that [[force]] is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a [[phobia]] although, if the defendant is aware of the psychological difficulty, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action although this might form a “menace” within the meaning of s22 [[Theft Act 1968]] for the purposes of [[blackmail]]. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that he or she is in no immediate danger. But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a [[mobile phone]] is used to transmit the threat (whether orally or by [[SMS]]) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault. |
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| − | In some states, [[consent (criminal)|consent]] is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a ''petty misdemeanor''.
| + | ===''Mens rea''=== |
| − | | + | The ''[[mens rea]]'' (Latin for "guilty mind") is that this fear must have been caused either [[intention (criminal)|intentionally]] or [[recklessness (criminal)|recklessly]]. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly. This is usually a [[summary offence]] but, in some jurisdictions (e.g. in [[England and Wales]] where s40 Criminal Justice Act 1988 applies), it can be an additional charge on an [[indictment]]. |
| − | Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the [[Unborn Victims of Violence Act|Unborn Victims of Violence Act of 2004]] treats the [[fetus]] as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See [http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c1082ah2oE::| H.R. 1997 / P.L. 108-212]
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| − | ===Example===
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| − | Two men wave metal [[pipe (material)|pipe]]s threateningly at each other in an [[alley]]. They are ten [[Foot (unit of length)|feet]] away from each other. When one man advances, the other retreats, maintaining the distance between them. The police come and break up the disturbance. They charge each man with assault.
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| − | The men would probably not be found guilty in an American common law jurisdiction. Being ten feet away does not make it likely or apparent that he would have the present ability to carry out an unlawful act.
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| − | However, they may be found guilty in a modern American jurisdiction. Each man is trying to cause bodily injury to another and the fear of bodily injury is reasonable.
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| − | {{OR}}
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| − | Some possible examples of defenses, mitigating circumstances, or failures of proof are:
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| − | *A defendant could argue that since he was drunk, he could not form the [[intention (criminal)|specific intent]] to commit assault. This defense would most likely fail since only involuntary [[intoxication defense|intoxication]] is accepted as a defense in most American jurisdictions.
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| − | *The defendants could also argue that they were engaged in mutually consensual behavior.
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| − | ==Aggravated assault== | + | ===Aggravated assault=== |
| | [[Aggravation (legal concept)|Aggravated]] assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person: | | [[Aggravation (legal concept)|Aggravated]] assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person: |
| | * attempts to cause [[Grievous bodily harm|serious bodily injury]] to another person; or | | * attempts to cause [[Grievous bodily harm|serious bodily injury]] to another person; or |
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| | Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to [[murder]], to [[rape]] etc.), the extent of the injury to the [[victim's rights group|victim]], or the use of a deadly [[weapon]], although [[law|legal]] definitions vary between jurisdictions. [[sentence (law)|Sentence]]s for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the [[perpetrator]]. | | Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to [[murder]], to [[rape]] etc.), the extent of the injury to the [[victim's rights group|victim]], or the use of a deadly [[weapon]], although [[law|legal]] definitions vary between jurisdictions. [[sentence (law)|Sentence]]s for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the [[perpetrator]]. |
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| | + | ===Bodily Harm=== |
| | + | Some jurisdictions have laws based on the level of harm caused to the victim. There are generally two distinctions: actual bodily harm (ABH) and grievous bodily harm (GBH). ABH is distinguished from the more serious charge of [[grievous bodily harm]] both on the level of ''intent'' required, and on the severity of the injury (self-evidently, the severity may provide evidence of the intent). The Crown Prosecution Service provide examples of factors which may indicate intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head."<ref>[http://cps.gov.uk/legal/section5/chapter_c.html Offences against the person] The Crown Prosecution Service. Retrieved July 1, 2007.</ref> All these examples would distinguish the crime as GBH, rather than ABH. |
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| | ==General defenses to assaults== | | ==General defenses to assaults== |
| − | '''Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:'''
| + | Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault: |
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| | ===Consent=== | | ===Consent=== |
| − | [[consent (criminal)|Consent]] may be a complete or partial defense to assault. In some jurisdictions, most notably [[England]], it is not a defense where the degree of injury is severe, as long as there is no legally recognised good reason for the assault.<ref>(RvG ref 6. 1980): see [http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20R%20v%20Brown.htm R v Brown (1993) 2 All ER 75])</ref>. This can have important consequences when dealing with issues such as consensual [[sadomasochism|sadomasochistic]] [[sexual activity]], the most notable case being the [[Operation Spanner]] case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognised as a defence of consent. | + | [[consent (criminal)|Consent]] may be a complete or partial defense to assault. In some jurisdictions, most notably [[England]], it is not a defense where the degree of injury is severe, as long as there is no legally recognised good reason for the assault.<ref>(RvG ref 6. 1980): see [http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20R%20v%20Brown.htm R v Brown (1993) 2 All ER 75])</ref>. This can have important consequences when dealing with issues such as consensual [[sadomasochism|sadomasochistic]] [[sexual activity]], the most notable case being the [[Operation Spanner]] case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognized as a defense of consent. |
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| | ===Arrest and other official acts=== | | ===Arrest and other official acts=== |
| − | [[Police officers]] and court officials have a general power to use force for the purpose of effecting an [[arrest]] or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary. | + | [[Police officers]] and court officials have a general power to use force for the purpose of effecting an [[arrest]] or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary. In Scottish Law, however, consent is not a defense for assault. |
| − | However in Scottish Law, consent is not a defense for assault.
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| | ===Punishment=== | | ===Punishment=== |
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| | ===Defense of property=== | | ===Defense of property=== |
| | Some states allow force to be used in [[defense of property]], to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 [[Criminal Damage Act 1971]] it may be argued that the defendant has a ''lawful excuse'' to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter [[vigilante]]s and excessive self-help. | | Some states allow force to be used in [[defense of property]], to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 [[Criminal Damage Act 1971]] it may be argued that the defendant has a ''lawful excuse'' to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter [[vigilante]]s and excessive self-help. |
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| − | In many [[common law]] jurisdictions, the [[crime]] of '''battery''' involves an [[injury]] or other [[contact]] upon the [[person]] of another in a manner likely to cause [[bodily harm]].
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| − |
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| − | Battery is often broken down into gradations for the purposes of determining the severity of punishment. For example:
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| − |
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| − | *''Simple battery'' may include ''any'' form of non-consensual, harmful or insulting contact, regardless of the injury caused. Criminal battery requires an ''intent'' to inflict an injury on another, as distinguished from a tortious battery.
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| − | *''[[Sex]]ual battery'' may be defined as non-consensual touching of the intimate parts of another.
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| − | *''Family violence battery'' may be limited in its scope between persons within a certain degree of relationship: statutes with respect to this offense have been enacted in response to increasing awareness of the problem of [[domestic violence]].
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| − | *''Aggravated battery'' is generally regarded as a serious offense of felony grade, involving the loss of the victim's limb or some other type of permanent disfigurement of the victim. As successor to the common law crime of [[Mayhem (crime)|mayhem]], this is sometimes subsumed in the definition of [[aggravated assault]].
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| − | In some jurisdictions, battery has recently been constructed to include directing bodily secretions at another person without their permission. In some jurisdictions this automatically is considered aggravated battery.
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| − | As a first approximation to the distinction between battery and [[assault]]:
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| − | * the [[actus reus|overt behavior]] of an assault might be A advancing upon B by chasing after him and swinging a fist at his head, while
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| − | * that of an act of battery might be A actually striking B.
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| − | Within United States law, in most jurisdictions, the charge of criminal battery requires evidence of a mental state (''[[mens rea]]''). This charge, is non-existent in some states though.
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| − | == England and Wales ==
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| − | Under the [[Criminal Justice Act]] (1988), a battery is defined as "''the unlawful application, [[intention]]ally or [[reckless]]ly of unlawful force''," where:-
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| − | *"intentional" = The culprit foresaw the outcome and wanted that to happen.
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| − | *"recklessly" = The culprit knew that by doing something there could be a certain outcome and went on to do that act regardless (The conscious taking of an unjustified risk).
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| − | *"inflicts" = The act is completed.
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| − | *"unlawful" = The culprit had no right in law to do the act.
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| − | *"personal" = The victim was a human (not an animal).
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| − | *"violence" = The complainant has to perceive that this is violence not mere touching.
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| − | This can range from gentle touches which can be construed as being threatening or sexual to punches or kicks and can include indirect actions such as leaving traps.
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| − | '''Actual Bodily Harm''' (often abbreviated to '''ABH''') is a type of criminal [[assault]] defined under [[English and Welsh law|English law]]. It encompasses those assaults which result in injuries, typically requiring a degree of medical treatment of the victim. The offence is defined in S-47 [[Offences Against The Person Act 1861]] and it is a [[hybrid offence]], i.e. it can be tried in either the [[Magistrates' Court]] or [[Crown Court]]. There is a maximum [[sentence (law)|sentence]] of 5 years [[prison|imprisonment]] (or 7 years if it is [[Racism|racially]] motivated).
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| − | ==The offence==
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| − | In English law, there is a range of non-fatal offences of varying degrees of severity beginning with '[[common assault]]' (the least serious), 'assault occasioning actual bodily harm' (ABH), and the most serious assaults resulting in [[grievous bodily harm]]' (GBH).
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| − | ===Assault===
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| − | For there to be an assault, the victim must either "apprehend" the application of physical force, i.e. anticipate that a [[battery (crime)|battery]] is about to occur, or experience a battery without warning. In ''Fagan v MPC'' [1969] 1 QB 439 a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman’s foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused the car to rest on the foot. This ''[[actus reus]]'' was a continuing state of affairs and the ''[[mens rea]]'' was formed during the relevant time (see [[concurrence]]). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.
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| − | ===Occasioning===
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| − | This is usually taken to mean the same as "causing" i.e. it includes both acts and [[omission (criminal)|omissions]]. In ''R v Roberts'' (1971) 56 Cr. App. R. 95 while giving a lift in his car, late at night to a girl, the defendant made unwanted sexual advances. She feared that he intended to rape her so, even though the car was moving, she opened the door, jumped out, and suffered grazes and concussion. Stephenson LJ. stated that the test for [[causation (law)|causation]] was whether the result was a reasonably foreseeable consequence of what the defendant was saying or doing. In ''R v Savage''; ''DPP v Parmenter'' (1991) 4 All ER 698 Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that s47 did not require proof of [[recklessness (criminal)|recklessness]] in relation to the 'occasioning'. The throwing of the beer was an assault, and that "assault" had occasioned the actual bodily harm which occurred in the continuing struggle. Parmenter injured his baby by tossing him about too roughly. Even though the baby was too young to apprehend the physical contact, there was voluntary contact that caused injury, so Parmenter was liable under s47 because the injury resulted from his intention to play with his son.
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| − | ===Bodily harm===
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| − | The [[Crown Prosecution Service]] states that "bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling." Examples of injures that would be considered ABH include:
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| − | *Loss or breaking of teeth;
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| − | *Temporary loss of sensory function, including loss of consciousness;
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| − | *Extensive or multiple [[bruise|bruising]];
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| − | *Displaced [[nosebleed|broken nose]];
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| − | *Minor [[bone fracture|fracture]]s of bones;
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| − | *Minor cuts requiring medical treatment.
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| − | Causing any of these injuries would constitute the "[[actus reus]]" ([[Latin]] for the "guilty act") of ABH. Grazes, minor bruising, swelling, superficial cuts or a [[black eye]] would probably be regarded as [[common assault]]. The concept of ABH was considered by the Divisional Court in ''DPP v Smith (Michael Ross)'' (2006) EWHC 94 (Admin). The defendant held down his former girlfriend and cut off her ponytail with kitchen scissors a few weeks before her 21st birthday. The Magistrates acquitted him on the ground that, although there was undoubtedly an assault, it had not caused ABH, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. The victim’s distress did not amount to bodily harm. The Divisional Court allowed an appeal by the DPP, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done. Judge P said:
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| − | :"In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm." It is concerned with the body of the individual victim."
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| − | It has long been accepted that ABH includes any hurt or injury that interferes with the health or comfort of the victim, and which is more than transient or trifling. To damage an important physical aspect of a person’s bodily integrity must amount to ABH, even if the element damaged is dead skin or tissue. As Creswell J. commented in his short concurring judgment:
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| − | :"To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm."
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| − | ====Non-physical injury====
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| − | Non-physical or ''psychiatric injury'' can be considered ABH, although there must be medical evidence of the injury. The original [[legislature|legislative]] intent was probably restricted to physical injury because [[Parliament]] required "bodily" rather than "mental" or "emotional" harm. Hence, in ''R v Clarence'' (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this an injury within the meaning of the Act. But, in modern times, ''R v Chan Fook'' (1994) 1 WLR 689 accepted hysteria as an injury when the defendant locked up a [[shoplifting|shoplifter]] who became very upset (i.e. there was some "harm"). This was followed by the [[Court of Appeal of England and Wales|Court of Appeal]] in [[R v Constanza]] (1997) 2 Cr. App. R. 492, and the [[House of Lords]] which confirmed the principle in ''R v Burstow'', ''R v Ireland'' (1998) AC 147. These were a pair of cases on [[harassment]] situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence and was diagnosed as suffering from a severe [[depressive illness]]. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in ss20 and 47 were capable of covering recognised psychiatric illnesses, such as an [[anxiety]] or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses.
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| − | ===''Mens rea''===
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| − | In committing an act of ABH, the "[[mens rea]]" (Latin for "guilty mind") may be one of recklessness rather than [[intention (criminal)|intention]]. The court in ''DPP v Parmenter'' ruled that, for ABH, “...it is not necessary to show that Parmenter intended bodily harm; if he intended or was reckless as to the assault, and the actual bodily harm was a reasonably foreseeable result (whether or not it was or should have been foreseen by Parmenter himself), that is sufficient.”
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| − | ==Distinction between ABH and GBH==
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| − | ABH is distinguished from the more serious charge of [[grievous bodily harm]] both on the level of ''intent'' required, and on the severity of the injury (self-evidently, the severity may provide evidence of the intent). The Crown Prosecution Service provide examples of factors which may indicate intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head." All these examples would distinguish the crime as GBH, rather than ABH.
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| − | ==Grievous bodily harm==
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| − | {{EngCrimLaw}}
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| − | '''Grievous bodily harm''' or '''GBH''' is a phrase used in [[English law|English]] [[criminal law]] which was introducein ss18 and 20 [[Offences Against The Person Act 1861]]. For less serious offences, see [[common assault]] and [[actual bodily harm|assault occasioning actual bodily harm]]
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| − | ==The offences==
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| − | s18 (as amended) reads:
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| − | :Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence and, being convicted thereof, shall be liable to imprisonment for life.
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| − | s20 (as amended) reads:
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| − | :Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence and, being convicted therefore, shall be liable to a term of imprisonment not exceeding five years.
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| − | The distinction between these two sections is the requirement of [[intention (criminal)|specific intent]] for s18. For this reason the offence under s18 is often referred to as "GBH with intent" or "wounding with intent." See [[Intention in English law]] for a discussion of the modern test to determine whether any particular consequence is intended.
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| − | ==Definitions==
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| − | Both these sections refer to '''wounding''' and to '''grievous bodily harm'''. These terms are not defined in the Act, but have been defined by the case law. A wound requires the breaking of the continuity of the whole skin, ''Moriarty v Brookes'' (1834) 6 C & P 684. A single drop of blood is sufficient, but it must fall outside the body (see ''JCC (a minor) v Eisenhower'' (1984) 78 Cr. App. R. 48). Grievous bodily harm means "really serious harm," ''DPP v Smith'' [1961] AC 290 (although ''R v Sanders'' (1985) CLR 230 allows "serious injury" as a sufficient direction to the [[jury]]).
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| − | ====Non-physical injury====
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| − | Non-physical or ''psychiatric injury'' can be considered "bodily harm" whether "actual" or "grievous," but there must be formal medical evidence to verify the injury. The original [[legislature|legislative]] intent was almost certainly restricted to physical injury because [[Parliament of the United Kingdom|Parliament]] required "bodily" (i.e. harm to the skin, flesh and bones of the victim) rather than "mental" or "emotional" harm. After all, [[psychiatry]] was in its infancy in 1861. Hence, in ''R v Clarence'' (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. The court was reluctant to consider this either an "injury" or an injury "inflicted" within the meaning of the Act because there was no assault. In modern times, the practice of [[statutory interpretation]] frequently refers to the actual intention of the draftsman as expressed in the words of the Act, but considered in the light of contemporary knowledge. Applying this approach. a recognisable psychiatric injury may be bodily injury. Thus, ''R v. Chan Fook'' (1994) 1 WLR 689 accepted hysteria as an injury when the defendant locked up a [[shoplifting|shoplifter]] who became very upset (i.e. there was some resulting "harm"). This was followed by the [[Court of Appeal of England and Wales|Court of Appeal]] in [[R v Constanza]] (1997) 2 Cr. App. R. 492, and the [[House of Lords]] which confirmed the principle in ''R v Burstow'', ''R v Ireland'' (1998) AC 147. These were a pair of cases on [[harassment]] situations before the Protection from the Harassment Act 1997 came into force. During a three month period, Ireland, who had a substantial record of making offensive telephone calls to women, harassed three women by making repeated silent or heavy breathing telephone calls to them at night. This caused his victims to suffer psychiatric illness. Similarly, Burstow could not accept the decision of a woman to terminate a relationship, so he harassed her over an eight month period by making silent and abusive telephone calls, distributed offensive cards in the street where she lived, appeared unnecessarily at her home and place of work, took surreptitious photographs of the victim and her family, and sent her a menacing letter. The victim was fearful of personal violence was diagnosed as suffering from a severe [[depressive illness]]. The best medical practice today accepts a link between the body and psychiatric injury, so the words "bodily harm" in ss20 and 47 were capable of covering recognised psychiatric illnesses, such as an [[anxiety]] or a depressive disorder, which affect the central nervous system of the body. However, to qualify, those neuroses must be more than simple states of fear, or problems in coping with everyday life, which do not amount to psychiatric illnesses. On the significance in the use of the word "inflict" in s20 as opposed to "cause" in s18 (''Burstow'', above), "inflicting" GBH under s20 could be committed even though no physical violence was applied directly or indirectly to the body of the victim. Further, neither offence requires that a [[common assault]] be committed (distinguish [[actual bodily harm]]). The Law Commission stated its view that "the deliberate or reckless causing of disease should not be beyond the reach of the criminal law" and there is continuing debate over whether the transmission of [[HIV]] is covered as GBH or under ss22-24 OAP Act 1861.
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| − | ===Inflict and cause===
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| − | Inflict is usually taken to mean the same as causing (see [[Causation (law)|causation]]), so shouting fire in a crowded theatre would "inflict" the injuries in the resulting panic (see ''R v Martin'' (1881) 8 QBD 54). In ''R v Sullivan'' (1981) CLR 46 a driver swerved towards a group of pedestrians intending to scare them, but lost control of the car and actually injured the pedestrians. As he had only foreseen the risk of non-physical harm, his liability was reduced to s47 as an assault. But, in ''R v Wilson'' (1984) AC 242 a driver punched a pedestrian in the face. Lord Roskill stated: "In our opinion, grievous bodily harm may be inflicted … either where the accused has directly and violently "inflicted" it by assaulting the victim, or where the accused has "inflicted" it by doing something, intentionally, which, although it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm." (see ''R v Burstow'' above that harassment is inflicted harm because it is intended to have an effect). But in ''R v Mandair'' (1994) 2 All ER 715, Lord Mackay held that "causing" was "wider or at least not narrower than the word 'inflict'," and both words include acts and [[omission (criminal)|omissions]].
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| − | ===Maliciously===
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| − | In ''R v Mowatt'' (1968) 1 QB 421 Lord Diplock stated:
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| − | :In the offence under section 20 … the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person … It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.
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| − | Therefore, the defendant must at least be reckless as to whether some harm, albeit not necessarily serious harm, is likely to be caused, (see ''R v Savage'' (1991) 1 AC 699) but a mere intention to assault is not enough (see ''R v Sullivan'').
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| − | ===Specific intent===
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| − | s18 has two separate ''mens rea'' requirements and is therefore an offence of specific rather than basic intent. ''R v Belfon'' (1976) 1 WLR 741 confirmed that references to mere foresight or recklessness that harm was likely to result are sufficient for the element "unlawfully and maliciously inflict/cause" for the basic intent in both ss18 and 20 but insufficient for the specific element. The intention either to cause or to resist arrest must be proved subjectively, say, in the charge "malicious wounding with intent to cause GBH." If this cannot be done, s20 and 47 are offences of basic intent and can be an alternative charge, and/or s47 is a [[lesser included offense|lesser included offence]].
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| − | ===Consent===
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| − | It is against [[public policy (law)|public policy]] to allow [[Consent (criminal)|consent]] to be a defence to either section (see ''[[Operation Spanner|R v Brown]]'' (1993) 2 WLR 556, a case concerning consensual [[sadomasochism]] activity) except in certain limited situations involving necessary medical operations, sport, and, occasionally, "horseplay," as in ''R v Aitken'' [1992] 1 WLR 1006, in which RAF officers set fire to one of their number inflicting severe burns.
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| − | ==Common assault==
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| − | {{EngCrimLaw}}
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| − | In [[criminal law]], a '''common assault''' is a [[crime]] when the [[defendant]] either puts another in [[fear]] of injury or actually commits a [[battery (crime)|battery]]. Under [[English law]], the offence is now defined in section 39 of the Criminal Justice Act 1988.
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| − | ==General principles==
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| − | Assault is not defined under s.39 of the Criminal Justice Act (1988) as this remains under the common law in the case of Venna. However, the said act contains the maximum sentence (of which is 6 months imprisonment) and the type of offence (which is a summary offence).
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| − | ===''Actus reus''===
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| − | Both in the [[common law]] and under [[statute]], the ''[[actus reus]]'' ([[Latin]] for "guilty act") of a common assault is committed when one person causes another to apprehend or fear that [[force]] is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a [[phobia]] although, if the defendant is aware of the psychological difficulty, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action although this might form a “menace” within the meaning of s22 [[Theft Act 1968]] for the purposes of [[blackmail]]. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that he or she is in no immediate danger. But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a [[mobile phone]] is used to transmit the threat (whether orally or by [[SMS]]) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.
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| − |
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| − | ===''Mens rea''===
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| − | The ''[[mens rea]]'' (Latin for "guilty mind") is that this fear must have been caused either [[intention (criminal)|intentionally]] or [[recklessness (criminal)|recklessly]]. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly. This is usually a [[summary offence]] but, in some jurisdictions (e.g. in [[England and Wales]] where s40 Criminal Justice Act 1988 applies), it can be an additional charge on an [[indictment]].
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| − | ==Status of offence==
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| − | This is the least serious assault and, under s11 Domestic Violence Crime and Victims Act 2004, a common assault can be an [[lesser included offense|alternative verdict]] to more serious offences of assault. In real terms, the degree of fear or the level of injury required for a conviction can be slight. Thus, even the most trivial of injuries can be a battery, whether as a scratch or bruise, so long as the contact can be proved. The distinction between common assault and [[actual bodily harm]] (ABH) under s47 [[Offences Against The Person Act 1861]] (OAP), lies in the degree of injury that results. ABH is more than “transitory” but less than “really serious injury” which is the definition of [[grievous bodily harm]] under ss18 and 20 OAP Act 1861.
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| − | ==Assault on a constable==
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| − | The fact that the victim is a police officer is not, in itself, an aggravating factor which would justify more serious charge. The criteria for a charge under under s47 OAP Act 1861 do not distinguish between members of the public and police officers as the victim. Under s89(1) Police Act 1996, it is an offence for a person to assault either:
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| − | :a constable acting in the execution of his or her duty; or
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| − | :a person assisting a constable in the execution of his or her duty.
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| − | This is a summary only offence which carries a maximum penalty of six months' imprisonment and/or a fine. According to ''R (Fullard) v Woking Magistrates' Court'' (2005) EWHC 2922 (Admin) a constable cannot be acting in the execution of his or her duty when unlawfully on private property. Thus, if the officer is not acting under the authority of a warrant, acting under a statutory or common law power of entry, or in hot pursuit, the person lawfully in possession of land is entitled to withdraw permission for the officer to remain. Should the officer refuse to leave, the officer will cease to be "acting in the execution of his or her duty." To make an effective withdrawal of permission, clear words must be used. Merely directing offensive remarks at the officer which amount to 'go away' will not necessarily withdraw any implied permission to enter or remain. Further, when properly required to leave, the officer must be allowed a reasonable opportunity to leave. However, once the opportunity to leave voluntarily has passed, it will not be an assault for the land owner to use reasonable force to cause the officer to leave.
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| − | However, motive may aggravate when the purpose of the assault is an intent to resist or prevent lawful arrest. Under s38 OAP Act 1861, this is a hybrid offence, which carries a maximum penalty on indictment of two years' imprisonment and/or an unlimited fine. This offence may also be used for assaults on store detectives or members of the public exercising a right to apprehend or detain an alleged offender committing an arrestable offence.
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| − | :''For other uses of the term "Assault," please see [[Assault (disambiguation)]].
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| − | {{Template:TortLaw-I}}
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| − | In [[common law]], '''assault''' is the [[tort]] of acting intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact, coupled with the ability to carry out the contact. Because assault requires intent, it is considered an [[intentional tort]], as opposed to a tort of [[negligence]].
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| − | As distinguished from [[battery (tort)|battery]], assault need not to involve actual contact—it only needs intent and the resulting apprehension. For example, wielding a knife can be construed as assault if a fearful situation was created.
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| − | There are 3 qualifications for assault. In general, assault is committed when (1) a harmful threat or offer is made (2) in a situation which creates fear (3) where there is ability to carry out the act if not prevented.
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| − | While the law varies by jurisdiction, contact is often defined as "harmful" if it objectively intends to injure, disfigure, impair, or cause pain. The act is deemed "offensive" if it would offend a reasonable person’s sense of personal dignity. While "imminence" is judged objectively and varies widely on the facts, it generally suggests there is little to no opportunity for intervening acts. Lastly, the state of "apprehension" should be differentiated from the general state of [[fear]], as apprehension requires only that the person be aware of the imminence of the harmful or offensive act.
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| − | Assault can be justified in situations of self-defence or defence of a third party where the act was deemed reasonable. It can also be justified in the context of a sport where consent can often be implied.
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| | ==Notes== | | ==Notes== |
| Line 228: |
Line 76: |
| | *Smith, J. C. ''Home Office Consultation Paper - Violence: Reforming the OAP Act 1861'' (1998) CLR 317. | | *Smith, J. C. ''Home Office Consultation Paper - Violence: Reforming the OAP Act 1861'' (1998) CLR 317. |
| | *Williams, Glanville. ''Force, Injury and Serious Injury'' NLJ 7/9/90 | | *Williams, Glanville. ''Force, Injury and Serious Injury'' NLJ 7/9/90 |
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| | ==External links== | | ==External links== |
| | * [http://www.crime-prevention.de/44101/44701.html| Crime prevention: theory & practice] | | * [http://www.crime-prevention.de/44101/44701.html| Crime prevention: theory & practice] |
| | * [http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c1082ah2oE::| H.R. 1997 / P.L. 108-212] Unborn Victims of Violence Act of 2004 | | * [http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c1082ah2oE::| H.R. 1997 / P.L. 108-212] Unborn Victims of Violence Act of 2004 |
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| | * [http://www.cps.gov.uk/legal/section5/chapter_c.html Crown prosecution Service] | | * [http://www.cps.gov.uk/legal/section5/chapter_c.html Crown prosecution Service] |
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| | {{Credits|Assault|132703984|Battery_(crime)|128420313|Actual_bodily_harm|128420138|Grievous_bodily_harm|140611760|Common_assault|133517561|Assault_(tort)|130111262|}} | | {{Credits|Assault|132703984|Battery_(crime)|128420313|Actual_bodily_harm|128420138|Grievous_bodily_harm|140611760|Common_assault|133517561|Assault_(tort)|130111262|}} |
Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, England and Wales, assault refers only to the threat of violence caused by an immediate show of force. The actual violence is battery, though this charge doesn't exist in all states and provinces. Simple assaults that do not involve any aggravation such as use of a deadly weapon are distinguished from aggravated assaults.
Definition
Depending on jurisdiction, assault can either be physical violence against another person or the perceived threat of said violence. It is classified as a misdemeanor in America, unless committed on a law enforcement officer. The more serious crime of aggravated assault is treated as a felony.
Four elements were required at common law:
- The apparent, present ability to carry out;
- An unlawful attempt;
- To commit a violent injury;
- Upon another.
In many common law jurisdictions, the crime of battery involves an injury or other contact upon the person of another in a manner likely to cause bodily harm. Battery is often broken down into gradations for the purposes of determining the severity of punishment. For example:
- Simple battery may include any form of non-consensual, harmful or insulting contact, regardless of the injury caused. Criminal battery requires an intent to inflict an injury on another, as distinguished from a tortious battery.
- Sexual battery may be defined as non-consensual touching of the intimate parts of another.
- Family violence battery may be limited in its scope between persons within a certain degree of relationship: statutes with respect to this offense have been enacted in response to increasing awareness of the problem of domestic violence.
- Aggravated battery is generally regarded as a serious offense of felony grade, involving the loss of the victim's limb or some other type of permanent disfigurement of the victim. As successor to the common law crime of mayhem, this is sometimes subsumed in the definition of aggravated assault.
In some jurisdictions, battery has recently been constructed to include directing bodily secretions at another person without their permission. In some jurisdictions this automatically is considered aggravated battery.
As a first approximation to the distinction between battery and assault:
- the overt behavior of an assault might be A advancing upon B by chasing after him and swinging a fist at his head, while
- that of an act of battery might be A actually striking B.
Important Concepts
Actus reus
Both in the common law and under statute, the actus reus (Latin for "guilty act") of a common assault is committed when one person causes another to apprehend or fear that force is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a phobia although, if the defendant is aware of the psychological difficulty, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action although this might form a “menace” within the meaning of s22 Theft Act 1968 for the purposes of blackmail. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that he or she is in no immediate danger. But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a mobile phone is used to transmit the threat (whether orally or by SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.
Mens rea
The mens rea (Latin for "guilty mind") is that this fear must have been caused either intentionally or recklessly. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly. This is usually a summary offence but, in some jurisdictions (e.g. in England and Wales where s40 Criminal Justice Act 1988 applies), it can be an additional charge on an indictment.
Aggravated assault
Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person:
- attempts to cause serious bodily injury to another person; or
- causes such injury purposely, knowingly, or recklessly in circumstances where the person has exhibited indifference to human life; or
- attempts or causes bodily injury to another person with a deadly weapon.
Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to murder, to rape etc.), the extent of the injury to the victim, or the use of a deadly weapon, although legal definitions vary between jurisdictions. Sentences for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the perpetrator.
Bodily Harm
Some jurisdictions have laws based on the level of harm caused to the victim. There are generally two distinctions: actual bodily harm (ABH) and grievous bodily harm (GBH). ABH is distinguished from the more serious charge of grievous bodily harm both on the level of intent required, and on the severity of the injury (self-evidently, the severity may provide evidence of the intent). The Crown Prosecution Service provide examples of factors which may indicate intent; for example: "a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; and using an offensive weapon against, or kicking the victim's head."[1] All these examples would distinguish the crime as GBH, rather than ABH.
General defenses to assaults
Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:
Consent
Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognised good reason for the assault.[2]. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognized as a defense of consent.
Arrest and other official acts
Police officers and court officials have a general power to use force for the purpose of effecting an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary. In Scottish Law, however, consent is not a defense for assault.
Punishment
In some jurisdictions, caning and other forms of corporal punishment are a part of the culture. Evidently, if it is a state-administered punishment, e.g. as in Singapore, the officers who physically administer the punishment have immunity. Some states also permit the use of less severe punishment for children in school and at home by parents. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
Self-defense
Self defense and defense of others may be defenses to liability. They usually require that force was necessary and the degree of force was reasonable.
Prevention of crime
This may or may not involve self defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.
Defense of property
Some states allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help.
Notes
References
ISBN links support NWE through referral fees
- Clarkson. C.M.V. Law Commission Report on Offences Against the Person (1994) CLR 324.
- Criminal Law Revision Committee Fourteenth Report (1980) Offences Against the Person (London: HMSO) Cmnd 7844.
- Cross, Rupert. Statutory Interpretation, (3rd ed.) Oxford: Oxford University Press. (1995)
- Horder, J. Reconsidering Psychic Assault (1998) CLR 392.
- Ormerod, D. C. & Gunn, M. J. Criminal Liability for Transmission of HIV (1996) 1 Web JCLI [1]
- Smith, J. C. Home Office Consultation Paper - Violence: Reforming the OAP Act 1861 (1998) CLR 317.
- Williams, Glanville. Force, Injury and Serious Injury NLJ 7/9/90
External links
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