4 minute read

Assault and Battery

Defenses

Consent In almost all states, consent is a defense to civil assault and battery. Some jurisdictions hold that in the case of mutual combat, consent will not suffice and either party may sue the other. Jurisdictions also differ on the question of whether consent is a defense to criminal assault and battery.

Consent must be given voluntarily in order to constitute a defense. If it is obtained by FRAUD or duress or is otherwise unlawful, it will not suffice. When an act exceeds the scope of the given consent, the defense is not available. A person who participates in a football game implies consent to a certain amount of physical contact; however, the individual is not deemed to consent to contact beyond what is commonly permitted in the sport.

Self-Defense Generally, a person may use whatever degree of force is reasonably necessary for protection from bodily harm. Whether this defense is valid is usually determined by a jury. A person who initiates a fight cannot claim SELF-DEFENSE unless the opponent responded with a greater and unforeseeable degree of force. When an aggressor retreats and is later attacked by the same opponent, the defense may be asserted.

The use of DEADLY FORCE in response may be justified if it is initially used by the aggressor. The situation must be such that a reasonable person would be likely to fear for his or her life. In some states, a person must retreat prior to using deadly force if the individual can do so in complete safety. A majority of states, however, allow a person to stand his or her ground even though there is a means of safe escape.

Whether the degree of force used is reasonable depends upon the circumstances. The usual test applied involves determining whether a reasonable person in a similar circumstance would respond with a similar amount of force. Factors such as age, size, and strength of the parties are also considered.

Defense of Others Going to the aid of a person in distress is a valid defense, provided the defender is free from fault. In some states, the

defender is treated as though he or she stands in the shoes of the person protected. The defender's right to claim defense of others depends upon whether the person protected had a justified claim of self-defense. In a minority of jurisdictions, the defense may be asserted if the defender reasonably believed the third party was in need of aid.

Defense of Property Individuals may use a reasonable amount of force to protect their property. The privilege to defend one's property is more limited than that of self-defense because society places a lesser value on property than on the integrity of human beings. Deadly force is usually not permitted. In most states, however, deadly force might be justified if it is used to prevent or stop a felony. An owner of real property or a person who rightfully possesses it, such as a tenant, may use force against a trespasser. Generally, a request to leave the property must be made before the application of force, unless the request would be futile. The amount of force used must be reasonable, and, unless it is necessary for self-defense, the infliction of bodily harm upon an intruder is improper. Courts have traditionally been more liberal in allowing the use of force to protect one's dwelling. Subsequent cases, however, indicated that there must be a threat to the personal safety of the occupants.

The states are divided on the question of whether a person who is legally entitled to property may use force to recover possession of it. In most jurisdictions, a landowner is not liable for assault and battery if the owner forcibly expels someone who is wrongfully on the property. The owner must not, however, use excessive force, and the fact that the person may not be held civilly liable does not relieve the owner of criminal liability. In some states, the use of force against a person wrongfully in possession of land is not permitted unless such person has tortiously dispossessed the actor or the actor's predecessor in title.

If possession of real or PERSONAL PROPERTY is in dispute, the universal rule is that force cannot be used. The dispute must be settled by a court.

With respect to personal property, the general view is that an owner may not commit an assault or battery upon the wrongdoer in order to recover property. A majority of jurisdictions recognize the right of an owner in HOT PURSUIT of stolen property to use a reasonable amount of force to retrieve it. In some states, stolen property may be taken back peaceably wherever it is found, even if it is necessary to enter another's premises. In all cases, the infliction of an unreasonable amount of harm will vitiate the defense.

Performance of Duty and Authority A person may use reasonable force when it becomes necessary in the course of performing a duty. A police officer, for example, may use force when apprehending a criminal. In some jurisdictions, private citizens may also use reasonable force to stop a crime being committed in their presence. Certain businesses, such as restaurants or nightclubs, are authorized to hire employees who may use reasonable force to remove persons who disturb other patrons. Court officers, such as judges, may order the removal of disruptive persons who interfere with their duties.

Persons with authority in certain relationships, such as parents or teachers, may use force as a disciplinary measure, provided they do not exceed the scope of their authority. Punishment may not be cruel or excessive.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Approximation of laws to AutopsyAssault and Battery - Intent, Defenses, Punishment