In criminal law, the term assault and battery is sometimes used to indicate one offense. As an assault is often an attempt to commit a battery, courts point out that an assault is an attempt to strike, whereas a battery is the successful attempt. A battery cannot be committed without assaulting a victim, but an assault can occur without committing battery.
Included in the crime of assault are:
- An attempt to commit a battery in which no actual battery or physical injury resulted and/or
- An intentional frightening (such as pointing a loaded gun at a person or menacing with a fist or knife). Generally, in an assault, the state must show apprehension or fear on the part of the victim if no blow, touching, or injury occurred.
In many states, the crime of assault also includes batteries. For example, the state of New York does not have a crime of battery. Therefore a person who swings a hammer at another with intent to cause serious physical injury is guilty of first degree assault if successful but is guilty only of attempted assault if no injury occurs.
Assault with a Deadly or Dangerous Weapon
A simple assault would be a misdemeanor or ordinance charge. The criminal charge of assault with a deadly or dangerous weapon would be a felony charge. Other types of felonies include manslaughter, homicide and murder. The issue of what is a dangerous or deadly weapon is a question for the jury or judge. For example, a handkerchief, under certain circumstances could be considered a deadly weapon.
Offensive Touching and Sexual Assault and Battery
Many states have enacted sexual assault statutes to replace or add to their old rape statutes. These statutes generally provide for three or four degrees of sexual assault. In addition to defining sexual intercourse broadly, these statutes also forbid and punish offensive touching. Under these sexual assault statutes, the offensive touching generally must be of an “intimate part” or “private part” of the body and for the purpose “of arousing or gratifying sexual desire of either party.
Felony and Aggravated Assault and Battery
Misdemeanor assault and batteries are classified as class A or B in most states. The degree of these crimes and penalties are increased with aggravating factors used by state legislatures. Some of these factors include:
- The severity of the injury
- The use of a deadly or dangerous weapon
- Culpable mental state
The presence of one or more of these aggravating factors could result in a felonious assault or battery.
Assault and Battery Lawyer
If you have been charged with assault and battery, it’s important to contact an experienced criminal attorney who is familiar with your states laws.
