The common law tort of assault occurs when one person intentionally causes another person to fear an imminent harmful or offensive contact. It does not require actual physical contact to be established.
Assault is both a common law offense and an intentional tort for which there are serious consequences under the law. Let’s explore what assault is and whether there are any legal defenses with Ehline Law and our personal injury attorneys.
“0:00 What is assault under English common law?
0:03 An assault under intentional English
0:06 common law is a situation where someone
0:09 comes very close to actually committing
0:12 a battery, but they don’t. In other words,
0:14 they don’t harmfully or offensively
0:15 touch you but they put you in a
0:18 reasonable apprehension of a harmful or
0:20 offensive conduct and because you were
0:22 placed in that reasonable apprehension
0:24 of an intentional offensive touching
0:27 that is enough to sue.”
Under the common law, it is a bodily harm threat or an attempt to commit such an act that can result in criminal liability, civil liability, or both. The common law makes notable differences between assault and battery, where assault is a threat or an attempt to cause bodily harm. On the other hand, the battery is actual bodily harm or physical harm carried out on an individual.
Under some jurisdictions, the two may be the same and fall under the legal term “assault,” but in others, it may be a summary offense (Canada and Northern Ireland).
There are three elements of assault that the plaintiff must prove if it brings an assault claim against an individual, and these include:
Where assault differs from battery is that battery requires actual bodily harm or contact, whereas in an assault, only the victim’s mental disturbance, or apprehension of immediate unlawful violence, is enough to bring an assault claim. Of course, there are other elements, too, most importantly causation.
It is important to note that simply saying words do not constitute an assault, as there must be an accompanying act. A threat to harm another person is not an assault, but if the person raises their fist when making threats, it may be enough to lead to assault as it can cause the other to apprehend immediate unlawful force.
The plaintiff can satisfy the intent element of assault if the courts determine that a reasonable person can be certain that the act will cause them to apprehend immediate and unlawful violence. It must create apprehension in the victim of immediate or unlawful violence.
The court will also consider the victim’s status. For example, a threat to a child could constitute an assault, but the same would not for an adult. A person holding a gun to another’s head can cause an apprehension of immediate unlawful personal violence in the victim, leading to assault.
Another thing to note is that the intent to harm or kill is unnecessary in an assault case. Under criminal law, however, the battery type of assault requires a specific intent, and an intent to scare or frighten someone does not constitute a battery.
All jurisdictions agree on one thing: the victim must be aware of the danger for it to be an assault. For example, a person throwing a rock at a sleeping victim will not fall under assault since the victim is sleeping and not aware of the danger.
Aggravated assault is punishable in all states across the country and is a serious form of assault where the defendant intends to do more than scare the victim. The person carrying out the threat could have the intent to kill, rob, or rape.
If a person has a dangerous weapon and has the intent to cause harm to another individual, it would constitute aggravated assault. An aggravated assault is when the person commits a serious physical injury using a deadly weapon, has sex with a minor, or causes bodily harm through reckless driving.
An attempt to attack a police officer or a government employee may fall under aggravated assault.
In England, assault can be charged as common assault, actual bodily harm, and grievous bodily harm. There are separate charges for sexual assault.
The following are some defenses available under tort law for a defendant in an assault case.
Consent could be an absolute or a partial defense, and legally recognized consensual assault can include horseplay, activities within a game, and surgery. Consent for sadomasochistic sexual activity is a grey area, as witnessed in R v. Brown following Operation Spanner in the United Kingdom.
Police officers have the authority to use force where necessary when making arrests or carrying out their responsibilities.
If there is a court order for the possession of goods, the police officers may use force to carry out the court order if necessary.
In the United States, corporal punishment by parents on their children is not an assault unless the act on the child is beyond reasonable punishment. Statutory and case law differ on what may constitute reasonable punishment by the parents, and under the law, it may be assault or child abuse causing bodily injury and psychological harm.
In the United Kingdom, lawful correction is available under the Criminal Justice Act 1988, but the children act 2004 limits the defense for common assault. But the court won’t always delve out the maximum penalty, often administering an alternative verdict for first offenses.
A person may use reasonable force to prevent a crime, but the force must be proportional to the activity carried out.
The prosecutors must also look at a balance of two things, including:
In the case of Palmer v. R, three men chased down two robbers who stole some ganja with sticks and stones, while one shot at the robbers, resulting in the death of one thief.
In court, the defendant claimed self-defense, but the jury did not agree and convicted him of murder. The judge stated that a person might only use reasonable force in preventing a crime.
A property owner can use reasonable force in preventing a trespasser from entering their property or land. However, under the Criminal Law Act 1967, the defendant may argue that they have a lawful excuse to trespass or damage property.
If you suffered injuries due to another’s intentional misconduct, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation.
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.