The main difference between assault and battery is whether physical force was actually inflicted. Assault is intentionally causing someone else to fear imminent violence. Battery is the unlawful infliction of force. Both are generally misdemeanor crimes. Aggravated factors can elevate them to felonies. Assault and battery can also lead to a civil lawsuit being filed by the victim.
Simple assault
Assault, sometimes called simple assault, is the crime of intentionally creating the apprehension of imminent physical harm in someone else, together with the apparent ability to do so.[1]
Note that physical harm is not an element in the definition of assault. Merely creating the apprehension of harm is enough.
For example: Max fights Toby outside a bar. Max throws a punch, but he misses.
This is why assault is often referred to as an attempted battery.
Battery
Battery is the crime of willfully and unlawfully using force on someone else.[2]
That force can be either:
- harmful, or
- [3]
The physical contact does not have to be significant. Even the slightest touching can amount to a battery. It can be indirect, such as by using another object to touch the victim.[4]
For example: Dave softly slaps Michelle with a flip-flop in an offensive manner.
Assault vs battery charges
Assault and battery charges are often thought of as the same thing. However, they are distinct criminal offenses:
- assault is putting someone in apprehension of imminent harm, while
- battery is actually inflicting that harm.
The confusion comes from the fact that they generally follow one another very rapidly. This is why it is common for people to be charged with “assault and battery.” However, they are 2 separate criminal offenses.
For example: Paul is arguing with Matt. Paul pulls his fist back to punch Matt in the face, then begins to bring his fist forward. At this instant, it is already assault. However, it is not also a battery until Paul’s fist makes contact with Matt.
You can have an assault without the battery.
For example: Paul throws the punch but Matt dodges it and it misses.
Rarely, you can have battery without the assault.
For example: Still angry weeks after their argument, Paul sees Matt, sneaks up on him, and punches him from behind without ever being noticed.
Aggravated assault
Certain aggravating factors can turn simple assault charges into charges for aggravated assault. Some of these include committing assault:
- on a police officer or other peace officer,[5]
- with caustic chemicals,[6]
- with a deadly weapon,[7] or
- with a firearm.[8]
The penalties for felony assault convictions are higher than for simple, misdemeanor assault.
Depending on your state’s criminal law, there may be multiple degrees of assault, with several of them being felony charges.
Aggravated battery
Simple battery cases can turn into aggravated battery if certain conditions are met. For example, you could be charged with aggravated battery if you commit a regular battery:
- on a police officer or other law enforcement officer,[9]
- on a school employee,[10]
- and cause a serious bodily injury or physical injury,[11] or
- with a prior conviction for a battery offense.[12]
Convictions for these offenses carry higher penalties.
Penalties
Simple assault or battery is generally a misdemeanor. A conviction can result in up to a year in jail, probation, and a criminal fine.
The judge may also impose other penalties, such as community service or counseling.
If aggravating factors existed, the charges could be felonies. Convictions carry multiple-year prison sentences, longer probation terms, and higher fines.
There may also be other sentencing enhancements, such as for domestic violence.
If convicted, you will also have a criminal record. This can lead to collateral consequences, such as additional difficulties in getting a job.
The best way to avoid these penalties is to secure effective legal representation.
Legal defenses
The three main legal defenses that you can raise to an assault or battery charge are:
- self-defense or defense of others,
- false allegations, and
- lack of willful conduct.
An experienced criminal defense attorney can help you decide which course of action would be the best for your particular circumstances. Establishing an attorney-client relationship and getting their legal advice is essential.
Self-defense or defense of others
The most common legal defense that the criminal defense lawyers at our law firm use against assault and battery charges is that you acted in self-defense or in the defense of someone else. This involves showing:
- you reasonably believed that you or someone else was in imminent danger of bodily harm,
- you reasonably believed that the immediate use of force was necessary to prevent that danger, and
- you used no more force than was reasonably necessary to defend against that danger.[13]
Note, though, that this defense is not available if you were only responding to words alone, even if they were a threat of violence.[14]
False allegations
Allegations of assault, battery, or other forms of physical harm are common in complex, hostile relationships. It is not uncommon for someone to lie about being assaulted in order to gain leverage over the person they are accusing.
Showing that the allegations against you are false can be an effective defense. By presenting evidence that there was an ulterior motive to the claims, it can weaken the case against you.
Not willful conduct
Assault and battery require at least willful conduct. Presenting evidence that the contact was accidental can be a strong defense in some cases.
Civil lawsuits
Assault and battery are also civil claims. The alleged victim can sue you in a personal injury lawsuit, also known as a tort claim. These claims have a lower burden of proof, so less evidence is needed for these claims than for the criminal case. However, jail time and other criminal sanctions are not on the table. Instead, you can be ordered to pay the plaintiff compensation for their losses from the assault and battery.
Legal References:
[1] See Florida Statutes 784.011.
[2] See California Penal Code 242 PC.
[3] See California Criminal Jury Instructions (CALCRIM) No. 960.
[4] See same.
[5] See California Penal Code 241 PC.
[6] See California Penal Code 244 PC.
[7] See California Penal Code 245(a)(1) PC.
[8] See California Penal Code 245(a)(2) PC.
[9] See California Penal Code 243 PC.
[10] See California Penal Code 243.6 PC.
[11] See California Penal Code 243(d) PC.
[12] See Florida Statutes 784.03(b)(2).
[13] See CALCRIM No. 3470.
[14] See CALCRIM No. 917.
