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.