Difference between revisions of "Assault and Battery" - New World Encyclopedia
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[[Category:Politics and social sciences]] | [[Category:Politics and social sciences]] | ||
| − | '''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]], | + | '''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 termed "battery," although this charge does not exist in all jurisdictions. Simple assaults that do not involve any [[Aggravation (legal concept)|aggravation]] such as use of a deadly [[weapon]] are distinguished from aggravated assaults. |
==Definition== | ==Definition== | ||
| − | Assault is the intention or threat to use violence. Battery is the actual use of this violence. Depending on jurisdiction, assault is sometimes also defined as the use of violence. | + | '''Assault''' is the intention or threat to use '''violence'''. '''Battery''' is the actual use of this violence. Depending on '''jurisdiction''', assault is sometimes also defined as the use of violence. 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. | ||
| − | + | Assualt is classified as a [[misdemeanor]] in [[United States|America]], unless committed on a [[law enforcement]] officer. The more serious [[crime]] of aggravated assault is treated as a [[felony]]. Aggravated assault involves four elements: (1) The apparent, present ability to carry out (2) an unlawful attempt (3) to commit a violent injury (4) upon another. Aggravated assault is usually differentiated from simple assault by the offender's intent (such as to [[murder]], to [[rape]], and so forth), the extent of the injury to the 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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| − | + | Battery is often broken down into gradations for the purposes of determining the severity of punishment: | |
| + | *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 tortuous 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 (crime)|mayhem]], this is sometimes subsumed in the definition of aggravated assault. | ||
| − | + | In some jurisdictions, battery has been constructed to include directing bodily secretions at another person without their permission. This may be automatically considered as aggravated battery. | |
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==Important Concepts== | ==Important Concepts== | ||
===''Actus reus''=== | ===''Actus reus''=== | ||
| − | [[Actus reus]] is ([[Latin]] for "guilty act.") In assault, this occurs when one person causes another to 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. Everyday physical | + | ''[[Actus reus]]'' is ([[Latin]] for "guilty act.") In assault, this occurs when one person causes another to 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. Everyday physical contacts such as handshakes or pats on the back are exempted unless the perpetrator is aware of some [[phobia]] in the victim. The perpetrator must be able to perform the violent action immediately, or else they are guilty of menace or [[blackmail]]. |
===''Mens rea''=== | ===''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 | + | 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 offense]] but, in some jurisdictions (such as in [[England and Wales]] where the 1988 Criminal Justice Act applies), it can be an additional charge on an [[indictment]]. |
===Bodily Harm=== | ===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 | + | 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). |
| − | ==Justifications for | + | 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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| + | ==Justifications for assault and battery== | ||
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: | ||
===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 recognized 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] Retrieved July 21, 2007.)</ref>. This can have important consequences when dealing with issues such as consensual [[sadomasochism|sadomasochistic]] [[sexual activity]] | + | [[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 recognized 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] Retrieved July 21, 2007.)</ref>. This can have important consequences when dealing with issues such as consensual [[sadomasochism|sadomasochistic]] [[human sexuality|sexual activity]]. Legally recognized good reasons for consent include; [[surgery]], activities within the rules of a [[game]], bodily adornment, or horseplay. However, any activity outside the rules of the game is not legally recognized as a defense of consent. |
===Arrest and other official acts=== | ===Arrest and other official acts=== | ||
| − | [[Police | + | [[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=== | ===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]], | + | In some jurisdictions, [[caning]] and other forms of [[corporal punishment]] are a part of the [[culture]]. Evidently, if it is a state-administered [[punishment]], such as in [[Singapore]], the officers who physically administer the punishment have [[immunity (legal)|immunity]]. Some states also permit the use of less severe punishment for [[child]]ren in [[school]] and at home by [[parent]]s. In [[English law]], the 2004 Children Act limits the availability of the lawful correction defense to common assault under the 1988 Criminal Justice Act. |
===Self-defense=== | ===Self-defense=== | ||
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===Prevention of crime=== | ===Prevention of crime=== | ||
| − | This may or may not involve self defense | + | Prevention of a crime is another defense for the threat or actual use of physical force. This may or may not involve self defense, since the crime being prevented could be an assault or it could be a crime that does not involve the use of personal violence. |
===Defense of property=== | ===Defense of property=== | ||
| − | Some states allow force to be used in [[ | + | 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. |
==Penalties== | ==Penalties== | ||
| − | Depending on the severity of the assault, there is a great range of penalties. Simple assault can carry penalties even as minimal as a fine. Beyond that can be penalties of a few months in prison up to life imprisonment for the most grievous sexual or physical assaults. Aggravated assault and the extent of the harm committed to the victim are the determining factors in sentencing. | + | Depending on the severity of the assault, there is a great range of penalties. Simple assault can carry penalties even as minimal as a fine. Beyond that can be penalties of a few months in [[prison]] up to life imprisonment for the most grievous sexual or physical assaults. Aggravated assault and the extent of the harm committed to the victim are the determining factors in sentencing. |
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==Notes== | ==Notes== | ||
Revision as of 22:58, 21 July 2007
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 termed "battery," although this charge does not exist in all jurisdictions. Simple assaults that do not involve any aggravation such as use of a deadly weapon are distinguished from aggravated assaults.
Definition
Assault is the intention or threat to use violence. Battery is the actual use of this violence. Depending on jurisdiction, assault is sometimes also defined as the use of violence. 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.
Assualt 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. Aggravated assault involves four elements: (1) The apparent, present ability to carry out (2) an unlawful attempt (3) to commit a violent injury (4) upon another. Aggravated assault is usually differentiated from simple assault by the offender's intent (such as to murder, to rape, and so forth), 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.
Battery is often broken down into gradations for the purposes of determining the severity of punishment:
- 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 tortuous 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 been constructed to include directing bodily secretions at another person without their permission. This may be automatically considered as aggravated battery.
Important Concepts
Actus reus
Actus reus is (Latin for "guilty act.") In assault, this occurs when one person causes another to 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. Everyday physical contacts such as handshakes or pats on the back are exempted unless the perpetrator is aware of some phobia in the victim. The perpetrator must be able to perform the violent action immediately, or else they are guilty of menace or blackmail.
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 offense but, in some jurisdictions (such as in England and Wales where the 1988 Criminal Justice Act applies), it can be an additional charge on an indictment.
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.
Justifications for assault and battery
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 recognized good reason for the assault.[2]. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity. Legally recognized good reasons for consent include; surgery, activities within the rules of a game, bodily adornment, or horseplay. 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, such 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, the 2004 Children Act limits the availability of the lawful correction defense to common assault under the 1988 Criminal Justice Act.
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
Prevention of a crime is another defense for the threat or actual use of physical force. This may or may not involve self defense, since the crime being prevented could be an assault or it could be a crime that does not involve 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.
Penalties
Depending on the severity of the assault, there is a great range of penalties. Simple assault can carry penalties even as minimal as a fine. Beyond that can be penalties of a few months in prison up to life imprisonment for the most grievous sexual or physical assaults. Aggravated assault and the extent of the harm committed to the victim are the determining factors in sentencing.
Notes
- ↑ Offences against the person The Crown Prosecution Service. Retrieved July 1, 2007.
- ↑ (RvG ref 6. 1980): see R v Brown (1993) 2 All ER 75 Retrieved July 21, 2007.)
ReferencesISBN 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
- Offences against the person, incorporating Charging Standard Crown prosecution Service. Retrieved July 21, 2007.
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