Assault
& Battery
Assault and battery can be tried
under criminal law or civil law or both. In criminal courts, assault
and battery have to be proven to the standard of "beyond
a reasonable doubt". In
the civil courts, assault and battery only needs to be proven
to the standard of "the preponderance of the evidence".
Assault and battery are legal
terms where assault is the threat of doing bodily harm and battery
is the infliction of unwanted touching (battering), though physical
injury is not necessary in order to prove battery. Insulting or
provocative words without threat, no matter how repugnant, do
not constitute assault.
Assault and battery usually constitute a single offense and are
considered willful or intentional
torts. The perpetrator willfully threatens to cause harm or
wrongfully touch the plaintiff and then follows by a physical
act such as pushing, shoving or hitting.
Battery can also be indirect such as the perpetrator throwing
and hitting the other person with an object such as a shoe or
knife or by spitting. If a person were to threaten to spit upon
another person and the spitter said they had HIV / AIDS and were
intending to infect the other person, then this would be assault.
If the spit landed upon the other person, this would be battery.
Assault is an intentional threat to cause bodily harm by using
physical force. The victim of the assault will believe that the
fear is well-founded and imminent and that the perpetrator will
carry out the threat unless prevented. Interestingly, for an assault
to be carried out, no physical force necessary need be applied.
The perpetrator may throw a realistic-looking toy knife at the
victim, which falls short and this constitutes as assault.
Battery is the intentional touching of another person against
that person's will or by an object put in motion by the perpetrator.
Battery need not cause actual physical injury to the person and
is still considered a civil offense. For instance, one person
may shove another person and no injury occurs, but this is still
considered battery and minimal (if any) damages will be assessed.
If one person shoves another and that person falls down and breaks
an ankle, that would also be battery and most likely more damages
(medical expenses, pain and suffering) would be assessed.
Exceptions Due to Privilege
Some people are exempt, under the law, from committing assault
and battery upon another person. Police officers, parents and
those who are defending their property are three examples of people
who may use reasonable force to arrest, discipline or defend without
causing assault and battery. Other examples include sports opponents,
those in mutual combat and those who are defending themselves
or a family member from bodily harm.
Police officers may threaten and use actual force to restrain
a person and make an arrest. As long as excessive force is not
use, the police officer is immune from assault and battery charges.
Police misconduct is when
an officer does use excessive force. Parents may also use reasonable
force in order to discipline their children. School teachers in
many jurisdiction are also allowed to apply a certain level of
force to physically restrain or discipline students. Property
owners and merchants may use threats and force to protect their
property or merchandise from damage or theft.
Those engaged in sports usually take upon themselves a certain
risk of injury and wave most of their rights to assault and battery
claims. An exception may be if a participant at a football game
used a knife or other weapon to injure an opponent as this would
be beyond the normal rules of engagement for the game. Two people
who engage in a fist fight also take upon themselves a risk of
injury and may not sue the other party for assault and battery
unless the other party used excessive or unreasonable force. An
example of unreasonable force is if one of the participants in
the brawl were to pull out a knife or use a club to beat the other
participant mercilessly, beyond subduing the opponent. Using reasonable
force to defend oneself or one's family members will also not
be seen as assault and battery. The act of protection, however,
must be proportionate to the threat that has been posed.
Case Law
Assault and battery case law is useful to understand common law
based upon the courts decisions. Case law in assault and battery
proceedings show attorneys, plaintiffs, defendants and judges
how other courts have judged similar cases in the past, setting
a precedent for the current case.
Some common assault and battery case law includes:
- Reed v. City of Lavonia - where the courts decided that police
officers were not entitled to qualified immunity since they
used excessive force with their nightsticks during an arrest.
- Champion v. Outlook Nashville, Inc. - courts sided with the
family of a non-verbal autistic man who was restrained by officers
with handcuffs, hobbles and pepper spray in an excessive manner.
- Commonwealth of Massachusetts v. Chambers - courts found that
a defendant can be found guilty of assault even when the victim
was unaware of the threat.
- England v. Barron, Georgia - courts found in favor of the
plaintiff for $3 million in a case involving a truck driver
punching a car driver and injuring her eye socket.
- Cunningham v. Lynch and Food - courts ruled in favor of a
waitress who was assaulted by the company's owner.
Assault and battery case law is common and can be researched
in many locations. Some services are free while others charge
a fee. If you've been victimized by assault and battery, contact
the police to file a report, then contact a personal
injury lawyer to check out the potential for civil litigation.
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