Depending on the jurisdiction and circumstances, spitting on someone may be a crime. In some states, spitting on someone can be assault or battery. In others, directing bodily fluids, including spit, at government employees, such as police officers or prison guards, is a crime. In either case, spitting on someone can lead to a lawsuit for civil battery.
Spitting can be a battery
Generally, battery is the crime of the willful and unlawful use of force on someone else.[1] Some states require there to be physical harm for it to amount to a battery,[2] while other states do not.[3] Criminal courts in some jurisdictions have expanded the concept of “physical harm” to include “offensive touching.”[4]
According to the Court of Appeals for the Ninth Circuit:
“Even a seemingly slight, but intentional, offensive touching can suffice for a battery.”[5]
When state law requires there to be physical harm, spitting on someone may not inherently be a crime. However, if it causes harm – like if the spit goes into the person’s eyes or transmits a disease – then it might amount to a battery.
In states that do not require physical harm for a battery to occur, or that include offensive physical contact as a type of physical harm, spitting on someone is far more likely to amount to a battery.
It can also be an assault
Assault is typically the crime of unlawfully attempting a battery, together with the capability of doing so.[6]
In states where spitting on someone is a battery, spitting on, or even just at, someone is an assault. Making contact is not required.
Spitting on government officials is often a crime
Some states have criminal laws that protect government employees from being spat upon. Those government employees are usually:
- peace officers,[7] and
- prison guards.[8]
Some state laws, like California law, expand this protection to other groups of people or circumstances, like:
- transportation personnel or passengers,[9]
- school employees,[10]
- jurors,[11]
- military personnel,[12] and
- any battery committed on school or hospital property, or in a park.[13]
Penalties
Generally, spitting on someone will be the lowest level offense of assault or battery. These are generally simple battery or simple assault charges. The physical contact caused by a spitter rarely causes serious bodily harm or bodily injuries.
Criminal charges for spitting on someone are often misdemeanor assault or battery charges that carry up to 1 year in county jail for a conviction.
Legal defenses
The criminal defense lawyers at our law firm have found that the following three legal defense are usually the best for defendants charged with a crime for spitting on someone:
- there was no intent to spit on the person,
- you did not know that they were a police officer or someone else protected by law, and
- you did not actually spit on them.
The defense attorneys at our law office have found that self-defense is rarely a good defense strategy for these cases. Spitting on someone is often something that the aggressor does before a fight.
No intent
Both assault and battery require willful conduct. If you can show that your spitting on the person was not an intentional act, this can be a strong defense.
For example: A bug gets in Harry’s mouth. He turns and spits on the sidewalk, realizing too late that he has spat on Susan’s leg.
Unawareness
If you are accused of spitting on a police officer or someone else protected by state assault and battery laws, an element of the crime is typically knowing who they are. If you can show that you did not know this, it can undermine the prosecutor’s case.
For example: An undercover police officer tries to contain protestors. Thinking that he is just a member of the public, Lucy spits in his face.
Our experienced criminal defense attorneys have found that this is generally not a strong defense for inmates who have been accused of spitting on prison guards, though.
You did not spit
You can also challenge the prosecutor’s factual allegations and argue that you did not spit. Law enforcement has the burden of proving that there was an offensive touching. Presenting evidence that undermines this allegation can be a strong defense.
For example: Peter gets arrested. The police officer claims that, during the arrest, Peter spat on the back of his neck. Peter’s defense attorney points out that, at the moment Peter allegedly spat, he was in front of the police officer, not behind him, and that it was a rainy day.
Civil liability for battery
Even where spitting on someone is not a crime, it can still lead to civil liability. The person you allegedly spat on can file a civil lawsuit against you for assault and battery.
While these personal injury lawsuits cannot lead to jail time, if you are found liable, you will have to pay compensation for the alleged victim’s losses. While these legal consequences are lower, they may not be insignificant if the victim suffered reputational harm from the incident.
Legal Citations:
[1] See California Penal Code 242 PC.
[2] Ohio Revised Code Section 2903.13 (though Ohio uses the term “assault” for conduct that more typically is referred to as “battery”).
[3] California Penal Code 242 PC.
[4] See United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000) (interpreting the federal statute 18 USC 113), and People v. Martinez, 3 Cal.App.3d 886 (1970) (California).
[5] United States v. Lewellyn, 481 F.3d 695 (9th Cir. 2007).
[6] See California Penal Code 240 PC.
[7] See California Penal Code 243(b) or 243(c) PC.
[8] See North Carolina General Statute 14-258.4.
[9] California Penal Code 243.3 PC.
[10] California Penal Code 243.6 PC.
[11] California Penal Code 243.7 PC.
[12] California Penal Code 243.10 PC.
[13] California Penal Code 243.2 PC.
