Assault and Battery Laws

While assault and battery are less serious than some violent crimes, a defendant still may face jail time and shoulder the burden of a criminal record. However, fights or other confrontations may be less straightforward than they seem. A defendant may have a strong argument against the charges. Rather than trying to persuade the police or prosecutors on their own, though, they should work with a lawyer experienced in these cases. Talking to the police often makes the situation worse instead of better, even if a defendant is convinced that they are innocent.

What Are Assault and Battery?

The law traditionally distinguished between assault (a threat of harmful contact) and battery (actual harmful contact), but states now often use terms such as "assault" to describe what was once called "battery."

Elements of Assault and Battery

Traditionally, assault and battery comprised two distinct crimes. To get a conviction for assault, a prosecutor usually would need to show that an intentional act by the defendant put someone else in reasonable fear of imminent harm. Crucially, this does not require actual harm. To get a conviction for battery, in contrast, a prosecutor usually would need to show that the defendant intentionally struck the other person or made some other form of harmful or offensive contact. In other words, battery often consisted of following through on the threat posed by the assault.

Some states, such as Florida and Illinois, still adhere to this distinction. Other states have extended definitions of “assault” to describe the type of physical contact historically called “battery.” For example, Texas Penal Code Section 22.01 defines “assault” in part as intentionally or knowingly causing physical contact with someone else when the defendant knew or reasonably should have believed that the other person would consider the contact offensive or provocative. Intentionally, knowingly, or recklessly causing bodily injury to someone else is also considered assault.

Example of Assault and Battery

Phil and Vern are arguing about football. Phil tells Vern that he is an idiot. This insult is not a crime. Phil then tells Vern that he will knock some sense into him and raises his fist. This is assault. Phil then delivers a punch. This is battery. (For the purposes of this example, assume that the jurisdiction uses traditional definitions of these crimes.)

Offenses Related to Assault and Battery

Some charges that might be brought in situations similar to those supporting assault or battery charges include:

• Homicide: an assault or battery caused the death of a victim
• Domestic violence: a person who experienced assault or battery had a particular relationship with the defendant
• Child abuse: a child experienced assault or battery
• Sexual assault: the offensive contact had a sexual nature or purpose

These charges generally are more serious than ordinary assault. A prosecutor might charge both assault and a greater crime if the situation supports it. This could give them leverage in plea negotiations, encouraging a defendant to plead guilty to assault in exchange for avoiding more serious potential penalties.

Defenses to Assault and Battery

One of the most common defenses to this charge is self-defense. This means that the defendant used force because they reasonably feared imminent harm. The force must have been proportionate to the threat. For example, if Vern sees Phil drawing back his fist for a punch, he probably cannot pull out a knife and stab Phil through the heart.

Consent may provide a defense in limited situations. If a group of friends play a pickup basketball game, a foul would not be assault or battery because the friends implicitly agreed to physical contact that is typical in the sport. The availability of a consent defense tends to be very fact-specific, though.

Since assault and battery often require intentional acts, a defendant might beat this charge if they can show a lack of intent. Perhaps someone shoved them toward the alleged victim, and they could not stop in time to avoid contact.

Sometimes the police arrest the wrong person. Perhaps the alleged victim has a grudge against the defendant and falsely accused them, or perhaps a witness could not clearly see the perpetrator. A defendant might bolster a mistaken identity argument with an alibi showing that they could not have been in the place where the incident occurred.

Penalties for Assault and Battery

States recognize that ordinary assault and battery show a lesser level of culpability than many crimes involving the use of force. Thus, a first-time offender generally will face a misdemeanor charge. Here are some examples of potential terms of imprisonment:

• Arizona: up to 6 months (physical injury caused); up to 4 months (reasonable fear of physical injury); up to 30 days (touching with intent to injure, insult, or provoke)
• California: up to 6 months
• Florida: up to 60 days (assault); up to 1 year (battery)
• Illinois: up to 30 days (assault); less than 1 year (battery)
• Massachusetts: up to 2.5 years
• Michigan: up to 93 days
• Pennsylvania: up to 2 years
• Texas: up to 1 year

Penalties may increase in certain situations, such as when the incident caused serious injuries, the defendant used a weapon, or the victim was a particularly vulnerable person like a child or an elderly person. Some states have created separate crimes, such as “aggravated assault,” to describe assault involving these factors. Others have divided assault into multiple degrees or added sentence enhancement provisions to the main assault statute.

Last reviewed August 2024