The terms “assault” and “battery” are often confused with each other. Assault refers to an act committed with the intention of making another person reasonably certain that they are about to be attacked and injured. The threat must be very apparent. Words alone won’t accomplish assault, for example, but when paired with the brandishment of a weapon, the act may rise to the level of assault. 

Battery, on the other hand, is the actual intentional touching of another person with intent to cause injury or harm. This arises when, for instance, the weapon being brandished makes contact with the intended victim.

Understanding the difference between assault and battery, it becomes clear that they are separate acts, not interchangeable. Also, they are not always committed together, but can be committed separately. For example, if the victim is attacked from behind, they won’t have the fear of being hurt, but they will actually be hurt. So their attacker is guilty of battery, but not assault.

It’s also important to recognize that there can be civil lawsuits for assault and battery, because they are a kind of act called a “tort” which may be addressed in a civil case. However, the states have their own laws making assaults and batteries crimes. Therefore, you can be both civilly sued, and charged with a crime, for committing an assault or battery. 

What are Some Legal Defenses to Allegations You Committed Assault and/or Battery?

These will vary based on whether the claim of assault or battery is being pursued with a civil lawsuit, or as a crime. Different states will have different laws regarding assault and battery. However, here are some general defenses that are used in assault and battery cases.

  • The claim can’t be proven: Each element of the assault or battery must be proven. As discussed above, the person alleged to have committed the act must have intention to commit an assault or battery. If it can be shown that the aggressor did not have the intention, neither assault nor battery can be proven. There are numerous reasons why the alleged aggressor may have been unable to form intent, including:
    • Intoxication due to alcohol or drugs. However, it the aggressor consumed drugs or alcohol voluntarily, this will not be a defense. This defense will only work if the person unknowingly became intoxicated (had a drug slipped into their drink, for example);
    • Mental illness or other medical condition that creates an incapacity for forming intent; A plea of insanity is unlikely to succeed, and, if successful, would likely result in the accused being committed to psychiatric care; or
    • Simple mistake. The accused simply may not have meant to commit an assault or battery.

Other elements must be proven as well. For an assault, the victim must have had a reasonable fear that they’d be harmed, and for a battery, they must have actually been harmed. If any element of the assault or battery cannot be proven, the claim must fail.

  • Self-defense: If the accused can show that they threatened to harm or actually harmed the person who claims to be their victim, this may work as a defense. Once again, elements must be proven individually in order to prove that self-defense actually occurred. The person claiming self-defense must show that they were afraid they’d be harmed, that they didn’t act first, and that they had no other recourse but to retaliate.
  • Defense of others: This is similar to self-defense, but instead of showing that they themselves were afraid of being hurt, the accused must show that they had a reasonable fear that someone else would be harmed.
  • Defense of property: The accused must show that they had a reasonable fear that their property would be damaged.
  • Consent: If the accused can show that the alleged victim consented to the act, this may work as a defense. This could arise during the playing of a sport, for example.
  • Privilege: Some people have a privilege based on their profession. Notable here is the profession of police officer. An officer may have to use force in the course of their job duties.
  • Mistaken identity/alibi: If the accused shows that they were not at the scene of the alleged assault or battery, and have an alibi to prove it, this will be a defense. The alleged victim may also have misidentified their attacker.

What Defenses Are Unlikely to Work?

As mentioned above, voluntary intoxication will typically not work as a defense to assault or battery. Aggressive behavior can’t be blamed on a person’s decision to become intoxicated. Provocation is also unlikely to succeed as a defense.

Should I Talk to a Lawyer If I Am Accused of Assault and/or Battery?

Whether you are facing a civil lawsuit or criminal charges for assault and battery, the issue is serious, but especially so in the case of criminal charges, which can lead to incarceration. You should contact a  criminal defense attorney to help you with you case.