Assault is the act of intentionally creating a reasonable apprehension of harm towards another person. For example, if Bob waves a knife at you and yells “I’m going to kill you!” this would be considered assault even if Bob never touches you.
What Is Battery?
Battery is the act of intentionally touching or applying force to another person such that the person suffers harm or offense. Using the prior example, Bob would be liable for battery if he actually stabbed you.
Can a Person Be Charged With Assault, But Not Battery or Vice Versa?
While assault and battery are often treated as a single act, the two can be mutually exclusive. In other words, one can assault a person without committing a battery. Likewise, a person can commit a battery without assaulting that person. For example, if Bob stabs you from behind without you witnessing the attack, then Bob is committing a battery without an assault.
If I am Convicted of Assault and/or Battery, What Kind of Punishment Will I Be Facing?
The answer will vary from court to court and from case to case, depending upon the facts of the case. The punishment may also differ depending upon the court system. If the claim is raised in the civil law system, the offender will only face demands for monetary compensation. If the claim is brought in criminal law though, jail time can be expected. Note that the offender can be brought to both systems of law, so jail time and monetary payment can be expected if the offender is doubly charged.
What are Possible Defenses against an Accusation of Assault and Battery?
- Insufficient evidence - An assault and battery charge can be dismissed due to insufficient evidence. For example, maybe there were no eyewitnesses of the assault and battery or no visible injuries on the victim. The most common insufficient evidence defense is an absence of the intent to harm the person. You do not need direct proof of intent as long as the circumstances infer you acted with intent to harm.
- Inability to prove each element of the claim – In order for a person to be convicted of assault or battery, the prosecution or plaintiff must prove that the person actually committed each part of the crime. There must be evidence that the defendant intentionally did the act, that the act occurred and that the act resulted in fear and/or harm. Failure to prove each part will result in a finding of not guilty.
- Defense of Others or Property - Everyone is entitled to defend themselves, their loved ones, and their property from an assault and battery. However, only reasonable force can be used. So if somebody is attacking your daughter, you are allowed to fight the person off. However, you cannot go beyond reasonable force and chase after the fleeing assailant.
- Provocation - People often claim self-defense when they are actually just provoked. In general, provocation is not a defense for an assault and battery. Provocation can lessen your sentence, but it will almost never dismiss the charges. For example, an aggravated assault can be lowered to a normal assault if heavy provocation of the accused is shown.
- Intoxication / Drugs or Alcohol - Drugs or alcohol are often involved in assault and battery cases. Drunken bar fighting is a prime example. If you voluntarily take drugs or drink alcohol, you cannot then blame your behavior on the substances. Saying "I was too smashed to realize what I did" will not be a valid defense. If you drink or take drugs voluntarily, you should realize the risks of doing so.
- Consent – Both assault and battery assume that the victim did not consent to the touching. This can be a viable defense where the victim voluntary entered the situation where the claim of assault or battery could arise. The right to bring a claim on sports battery, for example, is often waived by the victim because the victim voluntary participates in the game.
- Insanity - Insanity is always a possible defense, but it is a "tough sell" in any court. This defense allows you to claim you were either insane at the time of the offense or during trial. If you are found insane during either of these times, you will be committed to a mental hospital.
What Defenses Will Not Succeed?
Drugs or alcohol are often involved in assault and battery cases. Drunken bar fighting is a prime example. If you voluntarily take drugs or drink alcohol, you cannot then blame your behavior on the substances. Saying "I was too smashed to realize what I did" will not be a valid defense. If you drink or take drugs voluntarily, you should realize the risks of doing so.
Will Any of These Defenses Work?
The best way to determine this is to consult an experienced attorney. An experienced criminal defense attorney will be able to analyze your situation and determine the best defense to pursue.