It is not uncommon to confuse the legal difference between assault and battery. The most basic of differences between these two legal concepts is that an assault is an attempt to commit a battery, and a battery is an unlawful touching of another person.
For example, if David intentionally slings a stone at Goliath, but misses his Goliath, then David has committed assault. On the other hand, if David actually hits Goliath with the stone, then David has committed battery.
This description of the most basic difference between assault and battery should serve you well for the rest of your life, especially if you never plan on taking a criminal law or torts exam. However, if you're still unsatisfied, consider the following deeper analysis of the differences between the legal concepts of assault and battery.
Criminal Law Assault v. Battery
Criminal Assault Defined: In the criminal law, an assault is defined as a direct, but ineffectual step, towards the application of force against another person, coupled with specific intent to use force against another person, without consent or legal justification.
Basically, this means that an assault occurs when the defendant tries to, but fails to, use force against another person without legal justification. Basically, assault is an “attempt” crime.
PC 240 Definition: In California criminal law, assault is defined as “An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (PC240-M).
Example: David tries to hit Goliath with a stone, but David misses. This is an assault by David.
Criminal Battery Defined: In the criminal law, a battery is defined as the unlawful application of force, or offense touching, against another person, and without consent or legal justification.
Essentially, this means that battery occurs when a defendant tries to, and does, use force against another person without legal justification. Battery is not a specific intent crime. In other words, a person can commit criminal battery even if she never intended to touch another person.
PC 242 Definition: In California, a battery is defined as any willful and unlawful use of force or violence upon the person of another.
Example: David tries to hit Goliath with a stone. David is successful in his attempt to hit Goliath with a stone. Therefore, David is guilty of battery under the criminal law. However, even if David was not trying to hit Goliath with the stone, but rather, David was trying to hit a break a window with the stone and Goliath was accidentally hit with the stone instead, then David would still be liable for battery. This is because David's use of the stone was unlawful either way (trying to break a window). a person with a stone).
Injury Caused: A criminal assault rarely leads to injury other than emotional damages. Nevertheless, assault is a crime under California law. In fact, there are many Penal Code Sections that cover the various forms of possible assault (i.e., assault on an officer, assault with a deadly weapon, assault with a vehicle, assault to commit a sex crime, and more). On the other hand, a criminal battery always involves a touching of another person, and injury is usually, but not always present with a battery crime.
Note: A battery does not have to be a direct application of force against another person to be completed. For example, pushing a person into another person is a battery against both persons. Another example would be the defendant slapping an object out of a victim’s hand without the defendant touching any part of the victim’s body (an indirect touching).
Indirect Contact After Assault: If the defendant attempts to directly batter another person (attempted battery), but the battery is ineffective as intended (the defendant did not touch the victim despite the defendant’s efforts), the defendant may nevertheless be charged with battery if the victim was “touched” indirectly from the defendant’s assault.
For example, if David intentionally throws a stone at Goliath (assault), but David misses his mark, then David may be charged with assault. However, if Goliath ducked to get out of the way of the incoming rock, and as a result of Goliath’s ducking, Goliath injured himself, then David may be charged with battery (indirect contact after assault). Of course, in this situation, David may be charged with assault and battery.
There are many penal code sections in California that cover battery crimes depending on the severity of the defendant’s conduct (i.e., battery on a peace officer, battery with severe bodily injury, etc.).
Offensive Touching Battery: A battery is an application of force against another person. However, that application of force does not have to result in a patent injury to the victim for the crime of battery to be complete. The application of force can be “offensive.” For example, a non-physical injury is often present in crimes related to sexual battery and domestic battery. In fact, a domestic battery may be committed without any direct or indirect touching at all (unjustifiably screaming at a girlfriend could be domestic battery) and more.
Incarceration: Both assault and battery are the same in the criminal law in the sense that both, assault crimes and battery crimes can lead to possible incarceration (jail or prison). The length of incarceration depends on the exact criminal charges levied against the defendant.
For example, a simple assault, charged under PC240-M, is classified as a misdemeanor. If the defendant is found guilty of simple assault, she could face up to one year in the county jail. On the other hand, if the defendant is charged with assault on an officer (PC245(c)-F), then the defendant could face up to three years in prison. The same disparity in punishment applies to battery crimes depending on the severity of the crime charged.
Civil Law Assault & Battery
Assault, as a civil tort, is defined as the “the intentional placing of another person in reasonable fear or apprehension of a direct application of force without consent or legal justification. Similar as to the criminal law definition, an assault only takes place if the defendant’s conduct was intentional, meaning that the defendant meant to place another person in reasonable apprehension of an imminent battery.
Incidentally, a "tort" simply means tortious conduct, or a civil "wrong."
Damages are presumed: In a civil law setting, a defendant does not face actual jail time. Rather, the defendant, if found guilty of civil assault or battery, faces monetary punishment, restitution, and possible restraining orders. If the defendant is found guilty of civil assault or battery, then damages associated with deterring the defendant’s conduct will be ordered against the defendant. This is true even if there are no economic damages that stemmed from the defendant’s conduct (i.e., victim’s therapy bills, etc.).
Apprehension Required: Also, in civil assault, an apprehension of fear must be shown by the victim in order to recover in an assault case. In other words, if the victim didn’t know that she was assaulted, then there is no assault. In the criminal law context, an assault is complete even if the victim was not aware of the defendant’s assaultive conduct.
For example, if David purposefully launches a stone at Goliath, but David misses his mark and Goliath was unaware that David, or anyone else, had launched a stone at him, then David is guilty of criminal assault, but not civil assault. This is because Goliath was never place in reasonable apprehension of an immediate battery (he didn’t know anyone threw a stone at him).
Battery, as a civil tort: Battery, in a civil context, is defined as “the unlawful application of force, or offensive touching, against another person, without consent or legal justification. This means that a defendant’s conduct can be negligent, and he may still be liable for damages in a civil court.
Similar as to assault in civil court, battery in a civil context leads to no jail time. However, a huge difference between assault and battery in a civil context, as compared to a criminal context, is that a battery may be committed completely accidentally.
For example, if David is swinging his sling around as part of a practice session, and during the practice session, David accidentally, but negligently, releases a stone that hits Goliath, then David may be liable for damages for battery against Goliath (assuming Goliath suffered damages).
Restraining Orders: Another difference between assault and battery is the application of restraining orders. An assault claim, either in criminal court or civil court, will almost always lead to a restraining order because the defendant’s conduct is intentional. On the other hand, a battery can be intentional, but a battery may be complete even without the specific intent of the defendant to commit the battery crime. Therefore, a battery claim will only lead to a restraining order if the defendant is alleged to have intentionally battered the victim.
Note: Restraining orders in criminal court are called criminal protective orders. Restraining orders in civil court are called civil harassment restraining orders, domestic violence restraining orders, and more. Criminal protective orders usually take precedence over any competing orders in other types of restraining orders.
Collateral Consequences: Because the act of assault is a specific intent crime (or a specific intent tort in civil law), the act carries collateral consequences that are associated with immigration status, professional licensing status, and military service status. Of course, a battery can also be the result of the defendant specific intent, but battery crimes generally carry fewer collateral consequences than assault crimes. This is true even though the punishment for either assault or battery is severe, and in some cases, a battery crime carries more punishment than an assault crime.
Note: Assault and battery crimes lead to record notice of such with the Department of Justice (DOJ). Therefore, a defendant in a criminal assault or battery case will likely face an inquire from a government agency after conviction (i.e., immigration department gets notice of the assault or battery conviction, professional licensing agencies get notice of the assault or battery conviction, and more). Civil assault torts, and civil battery torts, do not result in a Department of Justice notice.
Defenses: Another difference between assault and battery is the applicable defenses. Because assault is an intentional act, certain defenses will apply to assault that may not apply to battery. More specifically, defenses that negate specific intent may be used in assault cases, but not in battery cases. These defenses include, severe intoxication, insanity, mistake of fact, and more.
For more information on the difference between assault and battery, contact our criminal defense lawyers today for a free consultation. Our defense lawyers represent all persons charged with a misdemeanor or felony offense in San Bernardino County, including the cities of San Bernadino, Riverside, Colton, Fontana, Rancho Cucamonga, Ontario, Victorville, Redlands, and more. Call today!
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