Assault and Battery

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

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. 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. It 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 (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.

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

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 contact 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 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.

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." 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 recognised good reason for the assault.. 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.

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.

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

• Crime prevention: theory & practice
• H.R. 1997 / P.L. 108-212 Unborn Victims of Violence Act of 2004
• Crown prosecution Service

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