You have to file a complaint (lawsuit) seeking a Domestic Violence Protective Order (otherwise known as a restraining order or as a "50B"). If it is at night or on the weekend, you do this through the magistrate's office. If it is during the week, you do it through the civil clerk of court. In the complaint, you set out the details of the act of violence or threat of violence that caused you to seek the Domestic Violence Protective Order. You will then appear before the judge or magistrate to describe what happened. If the judge or magistrate determines you are entitled to an emergency Ex Parte Protective Order, it will be issued at that time. Your abuser is not notified of or present for the emergency hearing. The emergency order is valid until there can be a hearing on the issue - at that hearing, the abuser will be present and have the opportunity to put on a defense. This hearing is normally held within 10 days. If the judge determines at the full hearing that you are entitled to a Domestic Violence Protective Order, one will be issued. This order will be valid for one year, but may be renewed at the end of one year for an additional time of up to two years.
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.
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.
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.
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 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.
By Elspeth Crawford
The intentional torts of assault and battery are often grouped together as if they are one single cause of action. While it’s true that the two frequently appear beside one another, they are two entirely different torts with their own discrete set of requirements.
An assault occurs when a defendant gives a plaintiff the impression that they are going to harm him, but for an assault to be actionable the defendant need not actually harm the plaintiff. Assault has two requirements. First, the person committing the assault must act with the intention to cause a harmful or offensive contact with the person of the plaintiff or a third party. Second, the person committing the assault must act in such a way that the plaintiff has the imminent apprehension of contact.
A battery occurs when a defendant intends to cause a harmful or offensive contact with a plaintiff or a third person and actually does cause such a contact. Basically, if you are touched in way that is considered harmful or offensive, the person who touched you has committed a battery.
Consent is a defense to battery. Plaintiffs who consent to batteries before they happened have little chance of prevailing in court. In addition to freely given consent, the law assumes that people consent to ordinary and customary batteries that occur commonly throughout everyday life. For example, a plaintiff who sues a defendant for battery after the defendant bumps into him in a crowded subway car would likely not win the case because the court will hold that the plaintiff gave implied consent for the battery to occur.
While assault and battery are separate causes of action, they very often occur together. If plaintiff perceives that a defendant has raised his fist to strike him, and then the defendant actually does strike him, the defendant has committed both an assault and a battery. If you have been the victim of an assault, a battery, or both, you can bring one or more causes of action to recover.