What is the difference between Assault and Battery?

Assault and battery are intentional torts that are often used interchangeably as if they are one single course of action. While it is true that assault and battery often occur together, they are two different torts with their own common law requirements.

Assault
An assault occurs when there is a willful attempt or willful threat made by the defendant to inflict injury upon the plaintiff or a third party. The common law elements of an assault include: an unlawful attempt, with the present ability, to commit a battery. Bodily injury does not have to occur in order for there to be an assault. Assault is simply the infliction of imminent fear on the plaintiff, where the defendant is physically capable of harming the plaintiff or third party.

• Unlawful attempt: The key distinguishable element between assault and battery is in order for there to be a valid assault no actual contact needs to occur. If a defendant points a knife at the plaintiff and the plaintiff believes that the defendant might actually stab him or her, an assault has occurred. It is irrelevant whether the defendant actually stabs the plaintiff or not.
• With present ability: Words alone are not enough to constitute an assault. If a defendant threatens to beat up the plaintiff during a telephone conversation, this does not rise to the level of an assault for two reasons. The first reason is that the defendant’s words are not accompanied by any physical action. The defendant did not inflict imminent fear on the plaintiff and therefore, it is not reasonable for the plaintiff to believe that actual harm will occur. The second reason is that the threat was made over a telephone conversation. Even if the defendant wanted to beat the plaintiff up, the defendant is not physically capable of doing so.
• Intent to commit battery: In order for an action to rise to the level of an assault, the defendant must intend to come in harmful or offensive contact with the plaintiff. If the defendant simply gives the impression of causing bodily injury but does not have the intent to carry out the action, no assault has occurred. For example, if a defendant trips over something giving a nearby plaintiff the impression that he is attempting to strike, there is no assault because the defendant did not intend any contact. The defendant’s actions were accidental. In this scenario, the plaintiff would not have enough situational evidence to substantiate a claim for assault.
• Moreover, there is no assault unless the plaintiff is in imminent fear of harmful contact. In the event that the plaintiff is unaware that he defendant is about to make contact with him, no assault has occurred. In the case where a defendant attempts to sneak up behind a plaintiff and raises a fist with the intent to strike, no assault has occurred because the plaintiff is unaware of the imminent contact.

Battery
A battery has occurred when a defendant willfully and unlawfully uses forceful violence or makes offensive contact with a plaintiff or a third party. The common law elements of battery include: the causing of bodily injury, offensive touching, and the intentional causing of harm to another person.

• In order for a battery to occur, the defendant is not required to make direct contact with the intended plaintiff. Transferred intent and constructive touching are two key ways for a defendant to commit battery without physically touching the plaintiff or third party. Transferred intent is the unintended act that results from an intentional act. If in the middle of a heated argument with his girlfriend, a boyfriend intends to hit his girlfriend but instead hits the two year old son in her arms, the boyfriend in this scenario has committed battery. Constructive touching is touching that is inferred or implied from prevailing circumstances. For instance, if a defendant hits a car with his fist that the plaintiff is riding in, one can infer that the defendant in this case is attempting to harm the plaintiff. Therefore the action of the defendant hitting the vehicle that the plaintiff is riding in is considered battery.

Although battery is a specific intent crime, the defendant does not have the authority to determine whether or not their actions are considered a battery. In other words, it is irrelevant whether or not the defendant considered his actions to be harmful or offensive. Even if the defendant hits the plaintiff as part of a practical joke that the defendant considers to be harmless, a battery has nonetheless occurred if the court considers the contact to have been harmful or offensive.

Consent
Consent is often used as a common defense to battery. Plaintiffs who consent to batteries prior to their occurrence, have a lesser chance of their accusations prevailing in court. The plaintiff’s consent to battery must be given without coercion. In addition to freely given consent, the law assumes that people give implied consent to ordinary and customary batteries that occur commonly throughout everyday life. For instance, a plaintiff who attempts to sue a defendant for battery after the defendant bumps into him in a crowded facility would have little chance of winning the suit. In this case, the court will hold that the plaintiff gave implied consent for the battery to occur.