Assault and Battery
Tort is generally defined as a wrongful act or an infringement of a right and is a civil wrong. Tort is different from the crime as criminal wrongs are punishable. The person committing a tort is legally responsible for the damages suffered by claimant. Usually, torts have four elements which are as follows: Duty, Breach, Injury, and causation. Which anyone of the act referring to the elements are considered as a tort. Also, tort have three types, they are: intentional, negligence and strict liability. In this article, we will be discussing about assault and battery in brief.
Assault and battery:
Both Assault and battery comes under the type of intentional tort. Both the Assault and battery are like two sides of a coin. They are similar in some cases but totally different from each other.
Assault is generally referred to as an attempt to harm a person. The sole intention of Assault is to threaten the person but, it should have any personal contact. For example, trying to punch a person is termed as Assault.
Battery is generally referred to touching a person to harm a person without his/her consent. In battery, the personal liberty of a person is compromised to cause harm to a person physically. For example, punching a person to harm is termed as a battery.
An act of the defendant who cause the plaintiff a reasonable apprehension of infliction of a battery on him. When the defendant creates his act by assuming that the defendant is about to cause battery on him, the assault is considered to be attempted. The assault may be an attempt to cause harm against the plaintiff rather than actually harming him physically.
In assault the charges must include conduct that is offensive causing another person to the fear of their safety. Even one person did not harm a person physically, but their actions pretended to harm, they are guilty. In case of R. v. S. George, pointing a loaded gun to another is considered as assault. Even if the gun is not loaded it will still be an assault.
Elements of Assault:
At least one element has not been satisfied, then It can be a defense to an assault charge. Elements of the crime of assault are:
An act or conduct intended to be created: Accidents do not include the allegations of assault. To prove a criminal attack, the victim’s behavior should be with fear or danger.
A reasonable apprehension: The victim should reasonably believe that the defendant’s conduct will cause harm or humiliate them. The victim must understand the defendant’s potentially harmful or offensive act.
Imminent harm: The victim’s fear must be directing a response to a threat that is imminent. The threats such as “I will beat you tomorrow” will not result in assault charge. There must be perceived physical threat to victim in loss. There must be an attempt to harm such as trying to kick or punch to charge assault on them.
All these elements must be proved with evidence if found guilty of an attack. It is difficult to prove whether the defendant intended the attack. But judges can spend some time in determining defendant’s actions are considered harmful.
Types of Assault:
In civil assault, lost earnings and pain suffered of past and future should be proved to sue the respondent for the full extent of his loss. The plaintiff has more control in this type of case and the district attorney is not involved. Only the plaintiff can bring the issue to the court. Punishment for the guilty results in the jail term or fine or both.
If the respondent is convicted in the case, it includes imprisonment or paying off the fine amount. In these cases, the fine may have to payed to the government and only the medical bills can be payed to the victim and do not incudes the lost earnings and pain suffered. To sue this type of assault, the victim should report to police station after the incident. After this, the police arrest the respondent and brings to the district attorney. If the plaintiff wins, the respondent should have to pay for financial losses and do not need to go jail.
Legal defense to the Assault:
Self-defense: this could be a defense that the defendant was acting for a self-defense. They should only use the force that is used to defend against them.
Intoxication: intoxication can be a legal defense only in cases where intoxication affects a person’s ability to act intentionally.
Coercion: coercion may be a defense if the defendant was forced to attack under threat of harm in such a case that the loaded gun is pointed is facing them.
Lack of proof: If the elements of proof are not found with the evidence, it can serve as a legal defense.
Action for damages: whenever the plaintiff gets wrongfully detained, he can bring out the legal actions to claim the damages. Compensation may also be claimed to the injuries as well as the humiliation caused.
Self-help: this remedy is for the persons who is still under the detention waiting for the legal action and procuring for the release.
Habeas corpus: the speedier remedy for procuring the release of person who is wrongfully detained. This can be issued by both supreme court under the article 32 or high court under the article 226 of Indian constitution. By this writ person detaining is required to produce the detaining is required to produce the detained person before the court to justify the reason for detention. The detained person can be immediately released by the order of the court if there is improper reason for the detention.
Some important cases:
- Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat decided on 24 May 1983
- State Of U.P. And Anr. vs Jaggo Alias Jagdish And Ors. decided on 30 March, 1971
- Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty decided on 15 December, 1995
- Arun Ghosh vs State Of West Bengal decided on 2 December, 1959
Purposely touching or applying the force other person without a consent or things related in the intention to harm the person is known as battery. If only there is a physical contact without consent of a person, battery is considered. Generally. Assault is followed by battery which is reason why the assault and battery are mostly used together.
Types of battery:
When a person has no intention to hurt someone but commits an act which hurts a person physically and wrongdoer had no idea that the act will hurt another person is known as civil battery. The intention is not present in civil battery, so the victim can lodge a complaint against the wrongdoer under civil court to compensate the losses and injury suffered.
If there is an intention to kill a person or to hurt the person with offensive contact physically, then it is considered as the battery of crime. Intention plays a major role as the action involves intention to kill a person or harm a person offensively in a criminal battery.
Essentials of battery:
Intention: the intention for both civil battery and criminal battery are different. The intent of causing injury is not necessary but the intention which causes the harm to the person is required as it results in the battery. The intent of battery is transferable as when a person tries to hit a person without his consent and ending up in hitting another person is still liable to the battery. The soul of battery is intention and it is essential.
Contact: contact or using the force to harm a person is necessary for committing battery. Using force is not a basic requirement but the force is a basic requirement to conduct battery. Physical contact through indirect ways are also considered as a physical contact such as using stick or spitting. It also does not require body-to-body contact as the battery can also be for the future events which have a delay between the accused actions and injury of the complainant will still be battery.
For example, intention of a person A to make another person B sick and mixes some toxic substances in the food which the person B eats, and it is considered that person A had committed battery against person B.
Harm: damage is the important for the completion of a battery. It can be in any form such as physical, mental, or emotional. Battery is not limited to physical damage and the victim must have suffered some damage to charge a battery. Uncomfortable touching as unusual sexual contact without a consent also comes under battery as it harms a person physically, emotionally, and mentally.
No consent: the victim must not know the action planned by the accused as the battery is committed when the victim had no idea about the contact that is going to happen. For example, doctors stealing the organs from the patients to sell them is called as battery. In case the doctor removing the appendix surgically to avoid the unwanted trouble causing in future, as a precaution he informs the patient about removing appendix, thee doctor is not liable for his actions as there is consent of the patient to remove the appendix surgically.
Justification: there must be no legal justification present to justify the actions of the accused. The plaintiff must prove that the force used was unlawful; and was not justifiable. For example, two persons were walking in a park and suddenly one person starts fighting with the other. Here, the person who started fighting will be liable to the battery. And in the same case, the person who suffers injury falls on the third person accidentally and cause some minor injuries, then his actions are not liable for battery as only intentional damages are charged by battery.
Legal Defense in battery:
Self-defense: self-defense is most common defense in both assault and battery cases. Protecting oneself from suffering harm form another person is not illegal. Safeguarding himself from unlawful force should be proved to accept his actions as a self-defense one and should prove that there are no other ways to save himself.
Defense of others: in case, a person tries to save another individual having a reasonable and honest fear of harm to that person must be saved. For example, person A tries to save person B from being murdered by the person C and causes some injuries to person C while saving person B then person A is not liable for his actions.
Defense of property:
This is like the self-defense, in case of protecting his property, but force used is only considered when there is unlawful use of force against the defendant. The defense is only valid when there is honest and reasonable fear of harming his properties. The owned can use force to take his property back.
Remedies in battery:
Legal remedies: compensations for the damage caused are referred to legal remedies from the defendant to plaintiff to compensate injury, pain and sufferings caused by the defendant. The amount of compensation is directly proportional to the plaintiff’s loss. They are considered as the tort claims.
Equitable remedies: when the monetary damages cannot restore the normal stage of the victim, the remedies include temporary restraining order which means avoiding the contact between plaintiff and defendant for the particular period of time and temporary or permanent injunction which means prohibiting the unlawful activities initiated by the defendant.
Some important cases:
- Kailash Chand Petitioner v. State Of H.P. & Others S, 2015
- Boodoosingh v. Ramnarace (Trinidad and Tobago), 2008
- Samira Kohli v. Dr. Prabha Manchanda And Another, 2011
So, both assault and battery are an intentional tort which deals with creating unconsented harm to another person or property of the person. Assault can be charged if the plaintiff believes that battery may be caused in future. In the case of battery, physical contact is very important as the battery cannot be constituted without any physical contact. Since avoiding physical contact with other people in day-to-day life is next to impossible. The physical contact must harm or must be offensive to constitute a battery, but this is not a case assault.
The physical contact must damage the person in any way that the act must not be justified by the law. The victim must not be aware of the act that is about to happen, which means there must be no consent of the victim to charge battery against the one who caused harm to the victim. All these elements constitute battery. This is very important in defining the battery. Both intention and the physical contact should be present in case of battery, this is the reason why the assault and battery are called together.
Author: SriKanth R,
2nd semester | BBA LLB | IFIM Law school, Bangalore