Legal terms you need to know
- Unconsented: Not agreed to.
- Harm: Physical or mental damage or injury. Merriam-webster.com
- Offensive: Causing resentful displeasure; highly irritating, angering, or annoying. Dictionary.com
- Grope: Unwelcome sexual touching.
- Excessive force: A force beyond that necessary to arrest a suspect and keep police and bystanders safe.
- Reasonable grounds: Evidence that gives a reasonable basis to believe that criminal activity has been, or may have been committed or not committed.
- Duress: An unlawful force used to make a person do something they do not want to do.
What Is Assault?
Assault is the act of putting another person in fear of immediate harm. There is no requirement for actual contact to take place.
Most people believe that if they have been hit by someone, they have been assaulted, but this is incorrect. Actual bodily harm in legal terms is ‘Battery’.
Assault requires a threat of unlawful force or harm against the accuser.
For any claim of assault there must be:
- A real and honest fear of immediate harm
- A reasonable basis for this fear
- No harm or provocation on the accuser’s part
- No reasonable chance of retreating or escaping the situation.
It is important to remember that assault does not require physical contact. It only requires a reasonable person to believe that they are in immediate danger of harm. To prove assault in court a person would need to show that in the given circumstances it would be reasonable to be in fear of unwanted physical contact.
Although assault is a criminal offence, cases can often be heard by county or municipal courts which have the jurisdiction to hear minor criminal cases such as minor assault, traffic offences etc.
An assault is both a crime and a tort as it is both a criminal offence (against the state and society) and also a civil case (between two people).
The person who is making a claim of assault may choose to forgive the person accused and drop the civil case against them but, under state law, the prosecutor may continue the claim of assault against the defendant for a criminal offence.
What Is Battery?
Battery is unwanted actual contact by another person. The contact must be harmful or offensive in some way. The force applied does not have to be strong or cause injury. It can include kissing or touching someone against their will.
Note: Usually, there is assault and then battery but, where a person does not know they are going to be physically harmed (such as someone coming up behind them and hitting them), there is no assault (no fear of immediate harm), only battery (actual physical contact).
When people enter contact sports they are assumed to have consented to the contact by knowing that there may be physical contact during the game. This can also apply to someone entering busy places such as nightclubs. By entering the club they understand that there may be some accidental contact but, unconsented groping or similar offensive contact is assault.
Common defences against claims of assault and battery
Self-defence is defined as the ‘right to prevent suffering force or violence through the use of a sufficient level of counteracting force or violence’. This raises the question of what is ‘sufficient’ use of force when it is applied to actual situations (See security personnel below).
A bar or club owner, security personnel or their agents, may use reasonable force to remove someone from their premises.
The judge would have to decide whether the force used was ‘reasonable’ in the given circumstances.
If the court decides that excessive force was used then the security person may be found guilty of both assault and Battery.
For more information see: Shopkeepers Privelidge Shopkeepers Privilege Explained
Defence of Others
This is similar to ‘self-defence above but it extends to the protection of others as well as of self. The defendant must prove that there were reasonable grounds to fear immediate harm to others.
The defendant must show that the victim actually consented to the act, and the act was not a crime.
The defendant must prove that the other party consented to the act and did so of their own free will and were not forced or under any form of duress.
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