Assault and Battery

Although one is usually liable for committing either an assault or a battery when he commits the elements discussed above, there are defenses to both crimes. Perhaps the most popular defense is the claim of self-defense. The defendant will argue that he committed the assault or the battery only because it was necessary to protect himself from attack. In other situations the defendant may seek to prove that he acted properly to protect another from harm. Although that person may have been touched in a forcible or offensive way, the defendant's actions are justified because they were prompted by a desire to help or rescue the person who was in a dangerous situation.

The consent defense is claimed where the victim permits the defendant to commit certain acts. The issue of consent often arises in cases involving sexual assaults, where the victim alleges that an attack occurred, and the defendant claims consent was given. In other areas, consent may also act as a defense to a charge of assault and battery, such as a situation in which the defendant grabs someone while playacting. Many courts, however, hold that consent is no defense when the act violates public policy, especially when the battery is severe. Hence, a battery is normally committed when two people agree to fight each other.

The issue of consent has become very important in the areas of sports and domestic relationships. In sports, the issue is whether excessive violence in a game exposes players to criminal liability. Although the elements of battery are present, it is argued that the players consent to these actions before the game starts. Consent is presumed by the players' participation in the sport. The question remaining is to what specific acts the players have given their consent. When some participants become rougher than may be reasonably necessary, can it be assumed that an injured player consented to this violence? There is as yet no definite answer to this, but as more sports-related prosecutions are brought, the answers will undoubtedly be forthcoming.

Interest in prosecuting domestic batteries has increased greatly as awareness of the problem developed. It is clear that in most domestic battery cases there is no actual consent given, so that consent should not operate as a defense to a criminal offense. The mere fact that the defendant was married to the victim should not operate as a defense. Still, government officials are properly reluctant to prosecute routinely in this area because of the presence in many cases of more appropriate forums for the resolution of disputes.

The common law crimes of assault and battery raise many interesting and difficult questions involving the elements of the offenses, the defenses to them, and the situations in which they should be charged. Perhaps most important is the need to clarify the societal interest in imposing criminal sanctions on such activities. Particularly when the defendant has not seriously injured the victim or did not intend adverse consequences, the civil tort remedy may be a preferable way of dealing with the problem.