ASSAULT AND BATTERY

ASSAULT AND BATTERY

This post will answer the following legal questions on assault and battery:

  • What is assault and battery?
  • How does the Commonwealth prove the defendant is guilty of having committed an intentional assault and battery?
  • What does it mean to intentionally touch someone?
  • Legally, can a person ever be touched indirectly?
  • Does consent factor into determining if an alleged victim was a victim of assault and battery when bodily harm is in question?
  • What is the difference between intentional assault and battery and reckless assault and battery?
  • How does the Commonwealth prove a defendant guilty of having committed an assault and battery by reckless conduct?
  • Can a defendant be convicted of assault or battery if he or she intended to injure or strike the alleged victim but did not actually touch his or her person? What about if the alleged victim foresaw (i.e. strong prediction or suspicion) there would be harm inflicted?
  • What happens if the alleged victim was injured while escaping?
  • Is an abuse prevention order admissible in evidence?
  • Is there a separate offense for committing assault and battery on public employees?
  • What other separate assault and battery offenses are there?
  • Is medical testimony admissible evidence in an assault and battery case?
  • Does the Commonwealth need to prove intent specifically directed at each of the actual victims of the alleged crime?
  • Are judges required to provide a statement of reasons in an assault and battery case if imprisonment is not imposed?

 What is assault and battery?

An assault and battery is the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another.

Note that under Commonwealth law, “assault”and “battery”are technically different offenses, but that every battery includes an assault as a lesser-included offense. They are legally considered to be closely related subcategories of the same crime.

How does the Commonwealth prove the defendant is guilty of having committed an intentional assault and battery?

 A touching is offensive and without consent when it amounts to an unprivileged and unjustified affront to the alleged victim’s integrity.

In order to prove a defendant guilty of having committed an intentional assault and battery, the Commonwealth must prove allof the following three items beyond a reasonable doubt:

  1. That the defendant touched the person of the alleged victim without having any right or excuse for doing so
  2. That the defendant intended to touch the alleged victim
  3. That the touching was either: 
    1. Likely to cause bodily harm to the alleged victim
    2. Was offensive and done without his or her consent

 

What does it mean to intentionally touch someone?

The second requirement of proving assault and battery indicates that the defendant must have been touched intentionally. This means that the defendant consciously and deliberately intended the touching to occur, and that the touching was not merely accidental or negligent.

The Commonwealth is not required to prove that the defendant specifically intended (see, “What are specific intent crimes?”) to cause injury to the alleged victim. Rather, assault and battery is legally considered to be a general intent crime (See, “What are general intent crimes?”), so therefore it does not require specific intent to injure the victim.

Legally, can a person ever be touched indirectly?

While a touching may be direct, like when a person strikes another, it could also be indirect. An indirect touching is when a person sets in motion some force or instrumentality (i.e. a thing that serves as an instrument) that strikes another.

Any injury caused by touching (direct or indirect) must have interfered with the health or comfort of the victim. It need not have been permanent.

Does consent factor into determining if an alleged victim was a victim of assault and battery when bodily harm is in question.

Any touching likely to cause bodily harm is a battery regardless of consent, but an offensive but non-harmful battery requires lack of consent or inability to consent.

Note also that mutual consent is no defense to cross complaints (i.e. legal paperwork that a defendant files to initiate his or her own lawsuit against the original plaintiff, a codefendant, or someone who is not yet a party to the lawsuit) of assault and battery.

What is the difference between intentional assault and battery and reckless assault and battery?

As explained above, a defendant can be charged with having committed an intentional assault and battery upon an alleged victim. However, there is a second way in which a person may be guilty of an assault and battery. Instead of intentional conduct, a person may conduct himself or herself in a reckless manner that results in bodily injury to another, called “reckless assault and battery.”

Note that jurors do not need to be unanimous on whether the assault and battery was intentional or reckless. They only need to be unanimous in agreeing that the offense of assault and battery was committed.

How does the Commonwealth prove a defendant guilty of having committed an assault and battery by reckless conduct?

The Commonwealth must prove bothof the following two items beyond a reasonable doubt in order to prove a defendant guilty of reckless assault and battery:

  1. That the defendant intentionally engaged in actions which caused bodily injury to the alleged victim

The injury must be sufficiently serious as to interfere with the alleged victim’s health or comfort. It does not need to be a permanent injury, but it must be more than trifling (i.e. more than unimportant or trivial). For example, an act that only shakes up a person or causes only momentary discomfort would not be sufficient.  

  1. That the defendant’s actions amounted to reckless conduct

It is not enough for the Commonwealth to prove that the defendant acted negligently—or in a way that a reasonably careful person would not. The Commonwealth must prove that the defendant’s actions went beyond mere negligence and amounted to recklessness.

The defendant is considered to have acted recklessly if he or she knew, or should have known, that such actions were very likely to cause substantial harm to someone, but he or she ran that risk and went ahead anyway.

Remember that even with reckless assault and battery, the defendant must have intended his or her actions which resulted in the touching, in the sense that those acts did not happen accidentally. If a defendant’s acts occurred by accident, then he or she must be found not guilty.

Can a defendant be convicted of assault or battery if he or she intended to injure or strike the alleged victim but did not actually touch his or her person? What about if the alleged victim foresaw (i.e. strong prediction or suspicion) there would be harm inflicted?

No, a defendant cannot be convicted of assault or battery if he or she only intended to injure or strike the alleged victim but did not actually touch his or her person. Neither can the defendant be convicted of assault or battery if he or she had a strong prediction or suspicion that there would be harm inflicted.

However, if the defendant actually realized in advance that his or her conduct was very likely to cause substantial harm and decided to run that risk, such conduct would be considered reckless.

Even if he or she was not conscious of the serious danger that was inherent in such conduct, it is still reckless conduct if a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were so dangerous that it was very likely that they would result in substantial injury.

The law does recognize one alternative form of assault and battery in which proof of willful, wanton, and reckless actions, which result in personal injury to another, substitute for intentional conduct. In this alternative scenario the Commonwealth would only have to prove beyond a reasonable doubt both that:

  1. The act involved a high degree of likelihood that substantial harm would result to another
  2. The victim suffered physical injury as a result of that act

This “high degree of likelihood” is both a subjective and objective standard and is based in part on the knowledge of facts that would cause a reasonable person to know that a danger or serious harm exists.

Note that simply because the offense of assault and battery is either applicable or inapplicable does not mean other legal issues like threatening or acting in self-defense do not factor into consideration with the case in question.

What happens if the alleged victim was injured while escaping?

The defendant may be convicted of assault and battery if the Commonwealth has proved beyond a reasonable doubt that the defendant caused the alleged victim reasonably to fear an immediate attack from the defendant, which then led him or her to try to escape or defend himself or herself from the defendant, and in doing so injured himself or herself.

Is an abuse prevention order admissible in evidence?

A judge may admit evidence of prior circumstances under which the alleged victim had obtained an abuse prevention order against the defendant. While such evidence is not admissible to show bad character or propensity to commit the assault and battery, it is admissible to provide a full picture of the attack, which otherwise might have appeared as an essentially inexplicable act of violence.

Is there a separate offense for committing assault and battery on public employees?

 Yes, there is a separate offense for committing assault and battery on public employees. Commonwealth law states:

“Whoever commits an assault and battery upon any public employee when such person is engaged in the performance of his duties at the time of such assault and battery, shall be punished…”

In other words, in addition to the items necessary to prove assault and battery, the Commonwealth has the additional burden of proving both of the following:

  1. That the victim was a public employee who was engaged in the performance of his duty at the time
  2. That the defendant knew that the victim was such an employee who was engaged in the performance of his duty at the time

Note that assault and battery on a public employee may be done recklessly as well as intentionally, and intent to strike a public employee is not required when considering the occurrence of recklessness.

What other separate assault and battery offenses are there?

There is a separate offense of assault or assault and battery on a correctional officer.

Note that if the individual assaulted or a victim of assault and battery is a correctional officer, specific intent is required to prove the defendant guilty of assault and battery. For example, a defendant that inadvertently struck a police officer while intending to strike someone else may be convicted only of the lesser-included offense of assault and battery. The offense is included within the final jurisdiction of the District Court.

There is also a separate offense of assault and battery on a person with anintellectual disability.

The first offense against a person with an intellectual disability is within the final jurisdiction of the District Court, although a subsequent offense is not.

Other separate offenses include assault or battery or aggravated assault or battery on: 

  • An emergency medical technician (EMT) while treating or transporting a person in the line of duty
  • An ambulance operator while treating or transporting a person in the line of duty
  • An ambulance attendant while treating or transporting a person in the line of duty
  • child under 14 causing bodily injury
  • child under 14 causing substantial bodily injury
  • A person 60 years old or older
  • disabled person

Is medical testimony admissible evidence in an assault and battery case?

In a prosecution for assault and battery, medical testimony about the victim’s injuries is admissible to establish that the defendant’s assault on the victim was intentional and not accidental.

Does the Commonwealth need to prove intent specifically directed at each of the actual victims of the alleged crime?

No, the Commonwealth only needs to prove intent as to one of the intended victims of an alleged offense. It does not have to prove intent specifically directed at each of the actual victims.

Are judges required to provide a statement of reasons in an assault and battery case if imprisonment is not imposed?

 Yes, a jury session judge who does not impose a sentence or incarceration must include in the record of the case specific reasons for not imposing a sentence of imprisonment. Such reasons must be part of a public record.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

 

 

Source: Instruction 6.140

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