An Overview on Assault and Battery Law
The basics of assault and battery in criminal cases and civil casesBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Rebecca Wade
Use these links to jump to different sections:
- What is Battery?
- What is Assault?
- The Difference Between Assault and Battery Matters
- Criminal Penalties for Assault and Battery
- Criminal versus Civil Cases for Assault and Battery
- Strategize with an Experienced Lawyer
- FAQs for an Attorney
Assault and battery charges can result from a wide range of situations, and they can be addressed in both civil and criminal contexts.
The following overview lays out the basics of assault and battery in criminal and civil cases. You can use this information to evaluate your situation and decide whether or not to meet with an attorney.
What is Battery?
While the legal definition of battery varies by state, it’s generally when someone intentionally touches another person in an offensive way without consent.
Rebecca Wade, a criminal defense attorney at Wade, Grimes, Friedman, Meinken & Leischner in Alexandria, Virginia, cites Virginia’s statute as an example: “Battery is any unwanted touching done in a rude, angry, or vengeful manner. So, a push could be a battery. Even something relatively minor, like a condescending pat on the head, could be a battery because it’s done in a rude manner.”
A battery could cause physical injury, but it doesn’t have to in order to count as a battery. Offensive contact rather than physical harm is the key to battery.
What is Assault?
As in this article, you’ll often see “assault and battery” listed together. Though similar, assault and battery are different, whether considered as criminal acts or intentional torts. The key difference is that battery requires physical contact while an assault does not.
“An assault is either an attempt at battery—I try to hit you, but you step out of the way, and I miss—or any physical act that places another person in fear of imminent bodily injury,” explains Wade.
“For example, shaking your fist like you’re about to punch someone, or getting in someone’s face in an aggressive manner—anything that would lead a reasonable person to believe that they’re in danger of some type of bodily harm.”
You’ve probably heard the saying that sticks and stones can break your bones, but words never hurt—and that’s true when it comes to assault. “Words alone aren’t enough for an assault,” says Wade. “There has to be physical action. You couldn’t just look at someone and say, completely calmly with your hands folded over your lap, ‘I’m going to punch you in the face.’”
These mere words wouldn’t give someone a reasonable fear (sometimes called reasonable apprehension) of imminent attack. However, “standing up, leaning over the table, fists clinched, screaming, ‘I’m going to punch you in the face!’—that could be an assault.”
The Difference Between Assault and Battery Matters
As noted, battery requires physical contact, whereas assault does not. Depending on the facts, these varying legal requirements can make a big difference to the outcome of your case. Wade gives an example of a case she had as a public defender:
“The warrant charged my client with assault—not assault and battery, just assault. The evidence was that the client hit the person from behind. And I said, ‘The Commonwealth has proven a battery, not an assault,’” since the client actually hit the other person rather than putting them in fear of imminent harm.
“The judge said, ‘You’re right,’ found the client not guilty, and let them go.”
Criminal Penalties for Assault and Battery
Criminal statutes are made and enforced on the state level, which means that the definitions of assault and battery will vary by location. Some states charge the offenses separately, while others combine them both into criminal assault.
The following gives the example of Virginia state law to show how these offenses can work. If you’re facing assault & battery charges, you need to speak with a criminal defense lawyer in your area as soon as possible—someone who knows your specific state laws and how to handle your charges.
“Assault & battery in Virginia is a Class 1 Misdemeanor, meaning it’s punishable by up to 12 months in jail and/or a fine of $2,100,” says Wade. There are also felony assault charges:
- If you cause a ‘malicious wounding’—that is, do something with the intent to maim, disfigure, disable, or kill the person, then that’s a felony that carries up to 20 years.
- It could be up to life if it’s an ‘aggravated malicious wounding,’ meaning your actions result in the person’s permanent injury.
- There’s also ‘unlawful wounding,’ which is up to five years, and with that you have to show the intent to maim, disfigure, disable, or kill but it’s not done maliciously—for example, it’s done in the heat of the moment, kind of like the difference between murder and manslaughter.
Other states might refer to these felony criminal offenses as aggravated assault, assault with a deadly weapon, or aggravated battery for serious bodily injuries.
“But most of your run-of-the-mill, non-serious injuries are going to be considered a misdemeanor,” says Wade, “and most of the time, depending on the facts, people get probation.”
Assault and Battery in the Domestic Context
Wade adds that Virginia has a separate offense category for assault & battery of a household or family member. “Basically, it’s what we call domestic violence. The consequences of that are the same as regular assault & battery, but it could also have consequences on your family situation, such as a protective order, kicking you out of the house, your child custody case, etc.”
While a first domestic violence offense is a class 1 misdemeanor, a third offense is automatically a felony, Wade explains—even if it’s just a shove or something minor. “The interesting thing about domestic violence in Virginia, though, is that there’s actually a statute that allows for first offenses to be dismissed after a period of probation and domestic violence intervention.”
Wade says that in her experience, she usually doesn’t see people get three or more charges resulting in an automatic felony. “For most people, it’s rare to see someone have more than two.”
Criminal versus Civil Cases for Assault and Battery
When someone threatens to hurt you or they cause harmful contact, you may have a cause of assault, battery, or both. As stated above, you often have the option to pursue your case as both a criminal and civil matter, but it depends on the legal definitions and statutes in your jurisdiction.
“You can do a criminal and civil case simultaneously or wait until the criminal case is done and do the civil case,” says Wade. If you plan to bring a personal injury lawsuit, you must be cognizant of your state’s statute of limitations, which sets a deadline on how long you have to sue. “In Virginia, that’s two years. Theoretically, your criminal case will be done by then. But the route you go down really depends on what type of recovery you’re seeking.”
In civil law, assault and battery are considered “intentional torts.” This means that they’re actions that the other party must have done on purpose.
“The problem in intentional tort cases is that it’s actually harder to get paid on intentional torts than negligence,” says Wade. “Because when you have a negligence case, you’ll often have an insurance company involved. If there’s a good claim, their job is to come in and pay it. But insurance doesn’t cover intentional torts. For example, you could have homeowner’s insurance, but if you punched someone in the face in your house, insurance isn’t going to cover that.”
So, what often happens in intentional tort cases is that “you get a judgment, but the defendant doesn’t voluntarily pay, and you have to go down all these routes to figure out if they have anything you can garnish to try to get the judgment paid. Since it’s hard to collect, many lawyers who do torts often don’t want to take assault & battery-type cases.”
Because of this difficulty, Wade explains that there is a provision under Virginia law called accord and satisfaction. “If you have a situation that has both a civil and a criminal remedy and it’s a misdemeanor, then under an accord and satisfaction, the plaintiff can receive financial compensation, say they’ve received full satisfaction for their injuries, and dismiss the case.”
In states like Virginia, “you probably have the best chance of being able to recover damages quickly through an accord and satisfaction.” However, Wade cautions that “you can’t threaten criminal charges simply in order to benefit a separate civil case—that in itself is the felony of extortion.” Rather, an accord and satisfaction is one potential method of resolving a criminal case that an experienced lawyer might utilize.
Strategize with an Experienced Lawyer
“I’m of the opinion that the sooner you consult a lawyer, the better,” says Wade:
- “Let’s say you’ve heard that someone is making a claim against you. If you go ahead and consult with a lawyer, you might be able to get out ahead of it, resolving matters before any charges are pressed.”
- “Or maybe you’re going to be charged, but at least if you’re consulting a lawyer, you’re not going in and saying something to the cops that will hurt you later.”
In addition, an experienced lawyer will know the applicable statutes in your state, so they will be able to help you determine whether you should bring a case for assault, battery or both.
They will also be able to help you decide whether you should bring a civil or criminal case, and they will know if there are limitations on bringing both. Your lawyer will also be able to obtain any necessary medical documentation to prove your case, and they can interview potential witnesses.
A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them, and may even be able to help you avoid potential problems altogether. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about as you navigate your case.
FAQs for an Attorney
Here are some questions you may want to consider when meeting with a criminal law attorney for legal advice:
What is your experience with assault and battery cases?
Whether you’re a potential defendant looking for a criminal defense attorney, or a plaintiff trying to find a personal injury lawyer to pursue compensation, it’s important to get a lawyer with experience in your type of case. Do some research before meeting lawyers to learn about their areas of expertise, their past cases, and the types of clients they help. In-person consultations are also a great way to learn about a lawyer and see if you feel like they’re a good fit.
What are your attorney’s fees and billing options?
There are many billing methods that lawyers use to charge for their legal services. Depending on the type of case and the attorney’s background, they might charge flat fees or hourly fees. In the context of personal injury lawsuits, many lawyers work on a contingency fee basis, meaning they don’t get paid unless you win your case; if you do win, they get a percentage of the award.
What damages are available through a lawsuit?
Every case is different, and some states set limits on how much plaintiffs can recover in personal injury lawsuits. In addition to how much you can get, there’s the practical question of how easy it will be to collect on a judgement. Will compensation come from an insurance company, or out of the defendant’s pocket? It’s smart to strategize about these matters with a lawyer to figure out if a case is worth the time and money to pursue.
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—to hire someone who can help you through your entire case. To do so, search the Super Lawyers directory, using the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for an attorney who specializes in assault & battery.
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