Other crimes - Assault and battery

Learning Outcomes

This article clarifies the criminal offenses of Assault and Battery for the MBE. It distinguishes between the two crimes, details their essential elements including required intent and actus reus, discusses potential defenses such as consent, and explains concepts like aggravated assault/battery. Upon completing this article, you will be able to accurately identify and analyze assault and battery issues in MBE fact patterns, differentiating between attempted battery assault and apprehension assault, and recognizing the necessary mental states and defenses.

MBE Syllabus

For the MBE, you are required to understand the elements defining Assault and Battery, including the different types of assault recognized at common law and under modern statutes. You should be prepared to:

  • Define Battery and identify its elements (unlawful application of force, intent).
  • Define Assault, distinguishing between the attempted battery type and the creation of reasonable apprehension type.
  • Identify the specific intent requirement for attempted battery assault.
  • Identify the general intent typically required for battery and apprehension-type assault.
  • Analyze causation and the requirement of harmful or offensive contact for Battery.
  • Assess the elements of apprehension, imminence, and reasonableness for apprehension-type Assault.
  • Recognize defenses, particularly consent, as they apply to Assault and Battery.
  • Distinguish between simple and aggravated forms of Assault and Battery.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Defendant, intending only to frighten Victim, swings a baseball bat near Victim's head but misses. Victim sees the bat coming and reasonably fears being hit. Victim is not physically touched. Defendant is likely guilty of:
    1. Battery only.
    2. Assault only.
    3. Both Assault and Battery.
    4. Neither Assault nor Battery.
  2. Which element distinguishes Battery from Assault based on reasonable apprehension?
    1. Intent
    2. Causation
    3. Harmful or offensive contact
    4. Imminence
  3. Defendant throws a rock intending to hit Person A but misses and hits Person B instead. Person B suffers injury. Under the doctrine of transferred intent, Defendant is most likely liable for:
    1. Assault against Person A.
    2. Battery against Person B.
    3. Attempted Battery against Person A.
    4. No liability, as the intent was not directed at Person B.

Introduction

Assault and Battery are distinct common law crimes against the person, often tested together on the MBE. Battery involves an unlawful physical contact, while Assault typically involves either an attempt to commit a battery or the intentional creation of a reasonable apprehension of imminent bodily harm. Understanding the precise elements, required mental states, and key distinctions is essential for correctly analyzing fact patterns involving these offenses.

Key Term: Battery An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Battery: Elements

The crime of Battery requires proof of three core elements: (1) an unlawful application of force, (2) to the person of another, (3) resulting in bodily injury or constituting an offensive touching.

Unlawful Application of Force

The "force" required for battery need not be significant; the slightest touching can suffice if done in an offensive manner. The application of force must be unlawful, meaning without legal justification or consent. The force can be applied directly (e.g., striking someone with a fist) or indirectly (e.g., setting a trap, poisoning food).

To the Person of Another

The force must be applied to the victim's person. This includes not only the victim's body but also anything intimately connected to it, such as clothing, an object the victim is holding, or even a vehicle the victim is occupying.

Resulting Injury or Offensive Touching

The application of force must result in either actual bodily injury (e.g., a bruise, cut, pain) or an "offensive touching." An offensive touching is one that would offend a reasonable person's sense of personal dignity. The victim need not be aware of the touching at the time it occurs for it to be deemed offensive (e.g., an unwanted kiss while asleep).

Mental State (Mens Rea)

Battery is typically a general intent crime. This means the prosecution generally needs to prove only that the defendant intended to perform the act that constituted the unlawful application of force. The defendant need not have intended the specific injury or offense that resulted. Some modern statutes may define battery to require recklessness or criminal negligence. Specific intent is generally not required, meaning defenses like voluntary intoxication are usually unavailable.

Key Term: Assault (Criminal) Either (1) an attempt to commit a battery or (2) the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Assault: Two Types

Criminal assault encompasses two distinct concepts often tested on the MBE.

1. Attempted Battery Assault

This type of assault occurs when a defendant intends to commit a battery but fails.

  • Intent: This requires a specific intent to commit a battery. The defendant must have actually intended to cause harmful or offensive contact.
  • Act: The defendant must perform an act that constitutes a substantial step towards committing the battery. Mere preparation is insufficient.
  • Present Ability: Some jurisdictions require the defendant to have the present ability to commit the battery.
  • Victim Awareness: The victim need not be aware of the attempted battery for this type of assault to occur.

Key Term: Attempted Battery Assault A type of criminal assault requiring a specific intent to commit a battery and a substantial step towards its commission, but where the battery fails to occur.

Worked Example 1.1

Defendant, intending to hit Victim with a thrown brick, throws the brick but misses entirely. Victim never saw the brick coming. Is Defendant guilty of assault?

Answer: Yes, likely of attempted battery assault. Defendant had the specific intent to commit a battery (hitting Victim with the brick) and took a substantial step (throwing the brick). Victim's awareness is irrelevant for this type of assault.

2. Reasonable Apprehension Assault

This type of assault focuses on placing the victim in fear or apprehension.

  • Intent: The defendant must intend to cause the victim to reasonably apprehend imminent harmful or offensive contact. General intent is often sufficient, though some jurisdictions might require specific intent to cause apprehension.
  • Apprehension: The victim must actually and reasonably apprehend imminent harmful or offensive contact.
    • Reasonable: The apprehension must be one a reasonable person would experience under the circumstances. Unreasonable fears are generally not protected unless the defendant knew of and exploited the victim's specific sensitivity.
    • Awareness: The victim must be aware of the threat.
    • Imminent: The threat must be of immediate harm. Threats of future harm are insufficient. Mere words generally do not suffice unless coupled with conduct indicating an immediate ability and intent to carry out the threat.
  • Apparent Ability: The defendant must have the apparent ability to carry out the threatened contact. Actual ability is not required (e.g., pointing an unloaded gun the victim believes is loaded).

Key Term: Reasonable Apprehension Assault A type of criminal assault involving the intentional creation of a reasonable apprehension of imminent harmful or offensive contact in the victim's mind.

Worked Example 1.2

Defendant, angry at Victim, raises his fist and yells, "I'm going to punch you right now!" Victim sees the raised fist and reasonably believes Defendant is about to strike him. Defendant does not actually swing or touch Victim. Is Defendant guilty of assault?

Answer: Yes, likely of reasonable apprehension assault. Defendant's act (raising fist) and words created a reasonable apprehension of imminent harmful contact (a punch) in Victim's mind, and Defendant likely intended to cause this apprehension.

Key Distinctions and Considerations

  • Contact: Battery requires contact; assault does not (though attempted battery assault involves an attempt at contact).
  • Intent: Battery usually requires general intent. Assault varies: specific intent for attempted battery, typically general intent (or specific intent to cause apprehension) for the apprehension type.
  • Victim Awareness: Battery does not require the victim's awareness of the contact. Reasonable apprehension assault does require the victim's awareness of the threat. Attempted battery assault does not require victim awareness.
  • Transferred Intent: The doctrine of transferred intent generally applies to both assault and battery. If Defendant intends to batter A but hits B, the intent transfers, and Defendant is liable for battery against B. If Defendant intends to batter A but misses, causing B to apprehend imminent contact, Defendant is liable for assault against B.

Exam Warning

Pay close attention to the specific facts regarding the defendant's intent and the victim's state of mind (awareness, apprehension). MBE questions often test the distinction between attempted battery assault (focus on defendant's intent and act) and reasonable apprehension assault (focus on victim's state of mind). Also, note the specific intent required for attempted battery assault, making defenses like voluntary intoxication potentially available, unlike for general intent battery.

Aggravated Assault and Battery

Most jurisdictions punish certain assaults and batteries more severely based on aggravating factors. Common aggravations include:

  • Use of a deadly weapon.
  • Intent to commit a felony (e.g., assault with intent to rape or murder).
  • Causing serious bodily injury.
  • Assaulting or battering specific classes of victims (e.g., police officers, children, elderly persons).

Defenses

While various criminal law defenses may apply, consent is a particularly relevant defense to simple assault and battery.

  • Valid Consent: Consent must be voluntarily and freely given by a person legally capable of consenting.
  • Scope: The defendant's conduct must not exceed the scope of the consent given (e.g., consent to a tackle in football does not equate to consent to being intentionally punched after the play).
  • Criminal Acts: Generally, consent is not a defense to breaches of the peace (e.g., street fighting) or where the conduct violates a law designed to protect a specific class (e.g., statutory rape).

Self-defense and defense of others may also justify the use of force that would otherwise constitute assault or battery, provided the force used is reasonable under the circumstances.

Summary

Battery is the unlawful application of force resulting in harm or offense, typically requiring general intent. Assault covers two scenarios: an attempted battery (requiring specific intent) or the intentional creation of reasonable apprehension of imminent harm (often general intent). Battery requires contact; assault does not necessarily. Victim awareness is essential for apprehension-type assault but not for battery or attempted battery assault. Both can be aggravated based on factors like weapon use or victim status. Consent and self-defense are key potential defenses.

Key Point Checklist

This article has covered the following key knowledge points:

  • Battery involves unlawful force causing injury or offense.
  • Battery typically requires general intent.
  • Contact for battery includes items closely connected to the victim.
  • Assault can be either an attempted battery (specific intent) or causing reasonable apprehension (general intent often suffices).
  • Attempted battery does not require victim awareness.
  • Reasonable apprehension assault requires victim awareness and imminence.
  • Defenses like consent and self-defense apply but have limitations.
  • Aggravated forms increase punishment based on specific factors.
  • Transferred intent applies to both assault and battery.

Key Terms and Concepts

  • Battery
  • Assault (Criminal)
  • Attempted Battery Assault
  • Reasonable Apprehension Assault
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