Civil Battery & Assault: An Overview

Assault and battery are crimes in virtually every state. However, both assault and battery may also form the basis for a civil suit for damages. In some states, the two are combined as one crime for criminal law purposes, but are separate and distinct "torts" for purposes of civil actions for damages.

A "tort" is basically the wrongful act of another for which the law affords a right to recover resulting damages. As a result, the perpetrator of a crime may possibly be subject to one, a criminal prosecution, and two, a lawsuit initiated by the victim. Because it is generally easier to prove liability in a civil action than it is to convict in a criminal action, seemingly different outcomes may result. For example, consider O.J. Simpson. In the criminal action, he was acquitted of murdering his wife, but later, in the civil action, he was held financially liable for her death.

Assault

Although the standards for proving assault in a civil action differ from state to state, in general, an "assault" is an attempt or threat of violence coupled with the apparent ability to commit the act of violence. Words alone usually cannot constitute an assault; rather, they must be accompanied by some menacing act. In addition, the assault must create the fear of an unlawful touching (battery) and that fear must be reasonable (i.e., the perpetrator must possess the apparent ability to commit the act). The perpetrator of the assault typically must intend to create the fear of harm.

Battery

"Battery" involves the unlawful touching of another. Although battery requires actual touching, it need not cause physical injury, nor be expected to do so. For example, battery may consist of physical contact of an offensive, insulting or provoking nature. Furthermore, the force does not have to be direct. Rather, battery may be accomplished with objects or substances put in motion by the person committing the battery. To illustrate, all of the following acts may be sufficient to constitute a battery (assuming other requirements are met):

• Commanding a dog to attack an individual
• Throwing stones
• Spitting

Damages

In a civil lawsuit, the party claiming damages must usually show that the defendant was guilty of assault and/or battery, then may recover for resulting damages, including:

• Physical injury awards
• Pain and suffering awards (compensation for estimated discomfort caused)
• Emotional distress awards
• Reimbursement for resulting medical expenses
• Wages lost because of inability to work

Defenses to Assault and Battery

A person who has committed an assault and/or battery may still avoid liability if she submits a valid defense. Allowable defenses vary from state to state, but may include:

• Consent: Where the party suing actually or impliedly consented to the assault or battery; e.g., surgery, or a foul in professional sports
  
  
• Self defense: Individuals may generally use "reasonable force" to protect themselves. Therefore, if the defendant was only defending herself, liability might be avoided. However, the defensive act must usually be reasonable and proportional to the threat. Furthermore, an additional duty to retreat (i.e., avoid the conflict) may also be imposed.
  
  
• Defense of others: In protecting another, an individual is generally allowed to use the amount of force the threatened person would have been entitled to use in defending herself.
  
  
• Defense of property: A person may be entitled to use some force to protect property, but this does not typically extend to deadly force or that causing serious bodily injury.
  
  
• Fights or mutual combat: When two or more individuals voluntarily start fighting, and neither individual is merely defending herself, it is unlikely that either will be able to sue the other, absent the use of unreasonable force by one of them.
  
  
• Shoplifting: Store owners and their employees have a limited right to use reasonable force against one reasonably believed to be shoplifting merchandise.