Assault and Battery

An assault is classified as either an attempted battery or an intentional frightening of another person; physical contact is not an element of the crime in either of these situations. Many states do not define assault, and some states list it under attempt rather than under assault.

Attempted battery. In assaults resulting from attempted battery, there must be a specific intent on the part of the defendant to cause injury. The theory behind this requirement is that one cannot be guilty of attempting a battery if he lacks the intent to commit a battery. In some states there is an additional requirement of a present ability to commit the crime, on the assumption that a defendant cannot have attempted a battery if he was unable to act at the time.

Intentional frightening. Most states classify as assaults those acts that are designed to frighten another. Thus, one is liable for committing an assault when, intending to cause another person reasonable apprehension of immediate bodily harm, one acts to create such apprehension. In such assaults the defendant does not plan actually to harm the victim, but merely to frighten him. Some states do not classify an intentional frightening as a crime of assault, believing that such acts are not serious enough to warrant criminal punishment. There is a strong argument in favor of the viewpoint that intentional frightening should be left to tort law, where the defendant is held responsible more for causing harm to the plaintiff than for acting dangerously.

In the majority of states, the first requirement of intentional frightening as an assault is an actual purpose to frighten. It is not necessary that one have the ability to harm someone, because this assault focuses on intent rather than on present ability. Thus, when one points an unloaded gun at another with the intent to frighten, one is guilty of committing an assault even though it is impossible for him to fire.

A second requirement for a successful assault charge is that the victim actually be frightened by the defendant's actions. In addition, the defendant's conduct must be of the sort to arouse a reasonable apprehension of bodily harm in the average person. Thus, it is not sufficient to say something that frightens another, if a reasonable person would not be placed in fear of bodily harm by such conduct.

Proving fright on the part of the victim can be difficult. Some courts have created a distinction between immediate fear and reasonable apprehension stating that reasonable apprehension may be a response of which the victim is not immediately aware. One may be so startled by the defendant's acts that one's reaction is delayed, but this should not automatically mean that one is not frightened. When a person is threatened with a gun, it is irrelevant whether the gun is loaded. Just as an unloaded gun may be used to fulfill the intent requirement, it may also serve to cause apprehension. If a gun is used, the victim's apprehension is normally proven unless it is shown he knew the gun was unloaded.

Conditional assault. In addition to the above two types of assault, there is a third category, that of conditional assault. This is an assault that arises only under certain conditions, usually failure of the victim to act as the defendant directs. If a defendant threatens to shoot another unless that person leaves the property, he is guilty of committing an assault even though the victim departs. The defendant is not protected from an assault charge simply because the victim complied with the condition. The fact that the defendant would have harmed the victim if the condition had not been satisfied is enough to supply the requisite intent.

Aggravated assault. As with batteries, assaults may be charged in an aggravated form. Acts such as assault with intent to kill or to rape are punishable as felonies rather than misdemeanors. Many statutes provide that the use of a deadly weapon automatically creates an aggravated assault. What constitutes a deadly weapon, however, is not always certain. Most courts hold that a dangerous weapon per se is an instrumentality designed and constructed to produce death or great bodily harm. Thus, a riding crop is not a dangerous weapon per se even though it may be used to inflict excessive bodily harm. The riding crop may still be a dangerous weapon, however, if the trier of fact decides that it has been used in a way that makes it dangerous. Guns are almost always considered dangerous weapons per se.