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What is the difference between assault and battery?

UPDATED: June 19, 2018

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In some jurisdictions assault is defined as the threat of bodily harm that reasonably causes fear of harm in the victim while battery is the actual physical impact on another person.  If the victim has not actually been touched, but only threatened (or someone attempted to touch them), then the crime is assault. If the victim has been touched in a painful, harmful, violent, or offensive way by the person committing the crime, this might be battery.  Even a minor touching can qualify as batter providing it is painful, harmful, or offensive to the victim.

Assault and Battery Across Jurisdictions

In certain jurisdictions, assault and battery are often paired together as one offense. The reason for this is, when someone commits battery they usually have the intent to harm, and threaten the person before committing the physical act. There will also be different degrees of battery including first degree, second degree, and third degree. Each degree describes how serious the crime may be. 

In other jurisdictions, assault is defined in broader terms as any intentional physical contact with an individual without their consent. In these states, the definition of assault encompasses the definition of battery of other jurisdictions. Further, like the states that have separate definitions for assault and battery, these jurisdictions generally have three degrees of assault. The degrees of assault determine the range of punishment to be administered for the crime. 

Degrees of Assault 

First degree assault, the level of assault that is given the harshest punishment, generally includes severe bodily harm and extreme indifference for the value of human life. Instead of using the category “first degree assault,” some jurisdictions will use the term aggravated assault, which is just another way of saying it’s the most serious form of assault. 

Aggravated or first degree assault will usually include the use of a dangerous weapon in its definition. Second degree assault will usually include the use of a dangerous weapon as well, but what makes second degree assault different from first degree assault is either the intent behind the bodily harm, or the level of bodily harm. Third degree assault is the form of assault that receives the lightest punishment. This is when a person attempts to injure another person, but does not, or when a person does injure a person, just not physically. 

Punishment for Assault and Battery

Regardless of which definition the jurisdiction uses, the broader definition of assault, or separate definitions for assault and battery, a crime of this nature in the first-degree (or aggravated) is classified as a felony. Depending on the state, it is punishable by 5-25 years in prison. A crime of this nature in the second degree is also usually classified as a felony, and depending on the state, is punishable by 1-20 years in prison. A crime of this nature in the third degree is usually classified as a misdemeanor, which means that the person will not spend more than a year in jail for the crime. This is the same for the jurisdictions that define assault as only the threat of bodily harm. 

Variations of Assault and Punishments

Other variations of assault charges include sexual assault (which can include rape and statutory rape), assault on a minor or juvenile, assault on a peace officer, assault with intent to murder, and gang assault. These are all generally classified as felonies. All of the above charges carry jail time and fines as well, and the charges are almost always enhanced if the person has prior offenses on their record. 

Defenses to Assault and Battery

While the definitions of degrees of assault or battery vary by jurisdiction, the most common defense to an assault or battery charge throughout all jurisdictions is mutual consent. Mutual consent is when both parties agree to the situation, meaning that there was not a one-sided attack. Other common defenses to assault and battery charges include self-defense, defense of others, or defense of property. However, these defenses can only be used when the force used to defensd oneself or others was proportionate to the assault or battery the individual intended to stop.

Any party charged with assault or battery should consult an experienced criminal defense attorney for the best available defense to the charge.

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