The reader should first review our article on torts. Assault is the act of the intentional and voluntary causing of reasonable apprehension in a person of an immediate harmful or offensive contact. Actual physical contact is not necessary in assault. Assault needs only intent and the resulting reasonable apprehension. For example, wielding a knife or yelling the word “snake” to a person whom one knows is in fear of snakes, can be construed as assault. Actual ability to carry out the apprehended contact is also not necessary since it is the reasonable state of mind of the victim that is the key. For example, an assault can take place if the defendant waved a toy gun at the victim.

Assault and battery are sometimes used interchangeably, but battery is an unjustified harmful or offensive touching of another. Battery also differs from assault in that it does not require the victim to be in apprehension of harm. In short, one can have an assault without a battery and a battery without an assault, but in most cases, battery follows an assault.

This article shall provide the basic law applicable to assault and battery.


The Basic Cause of Action:

Assault developed in common law, meaning it developed through usage, custom, and judicial decisions of England and the early United States rather than from legislative enactment. Modern-day assault statutes closely reflect the ancient common-law definition. An assault is both a crime and a tort. The state protects the public by alleging a prosecuting a crime while the individual harmed may seek civil relief by filing a private litigation. Therefore, an assailant may face both criminal and civil liability. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.

Assault requires:

  • An act intended to cause an apprehension of harmful or offensive contact.
  • An act that causes apprehension in the victim that harmful or offensive contact is imminent.

It is important to note that in most jurisdictions, words, without an act, cannot constitute an assault. For example, no assault has occurred where a person waves his arms at another and shouts, “I’m going to shoot you!” where no gun is visible or apparent. However, if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat, an assault has occurred. But note that it is the person’s reasonable fear that matters. It is an assault where a person threatens to shoot another while pointing a gun, even where the victim later learns that the gun was not loaded. Moreover, pointing a gun without an accompanying verbal threat is still an assault, assuming the victim saw the gun since the act, itself, was threatening and needed no accompanying words.

Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result; intent is established whether or not he or she actually intends those consequences to result.

Pointing a gun at someone’s head is certain to result in reasonable apprehension for the victim. In criminal law, intent means acting with a criminal or wrongful purpose. Criminal assault statutes often speak of acting “purposely,” “knowingly,” “recklessly,” or “negligently.” Acting negligently means to deviate from the standards of normal conduct. Some criminal assault statutes recognize only “purposely,” “knowingly,” and “recklessly” as the level of intent required to establish that an offense occurred.

The victim must have a reasonable apprehension of imminent injury or offensive contact. This element is established if the act would produce apprehension in the mind of a reasonable person.

It is vital to note that apprehension is not the same as fear. Apprehension means awareness that an injury or offensive contact is imminent. Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. For example, it may take less to create apprehension in the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An assailant who points a gun at a sleeping person has not committed an assault. Finally, the threat must be imminent, meaning impending or about to occur. Threatening to kill someone at a later date would not constitute an assault. It may constitute other crimes such as stalking.

Note that battery is the actual physical touching of the person. Assault is the threat-battery is the act, itself.


What Damages Lie?

Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate. Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer. Punitive damages go above and beyond compensatory damages.


The Criminal Side:

All states and the federal government have statutes making assault a crime. A criminal assault may be either a felony or a misdemeanor, depending upon the seriousness of the offense. Aggravated assault is a felony in all jurisdictions. It is an assault that goes beyond merely an intention to frighten the victim; it is committed with intent to commit some additional crime or is particularly egregious in some way. Examples of aggravated assault are assaults committed with the intent to kill, rape, or rob. Assault with a dangerous or deadly weapon is an aggravated assault where the assailant points a loaded gun at the victim. An assailant who points an unloaded gun at a victim has committed an assault, but usually not an aggravated assault.



Unless one suffered some ill health effect or injury, such as running away from an assault and falling down the stairs, the actual compensatory damages from assault are usually small. Battery is a different matter since actual physical contact is achieved. As such, in most instances of assault, a criminal complaint is issued but civil action is not commenced. See our article on Buying Justice. Cost benefit cost of the suit normally make assault a case not worth pursuing. However, in cases in which the defendant acted outrageously (threatening a child or a pregnant woman, disrupting a funeral service, etc. etc.) punitive damages may lie and action is worth considering.

Battery almost always results in legal action since the physical contact goes far beyond what the state of mind of the victim is and most judges and juries consider such an act intolerable and worthy of punishment. Incidental contact, while battery, is unlikely to create meaningful damages. ]

Note that hitting someone intentionally with a vehicle (car, boat, bike, etc.) is assault that is not only aggravated but may lead to charges of attempted murder. Reckless conduct that may not constitute a charge of murder may still constitute, civilly, an aggravated assault. Driving while intoxicated and striking a pedestrian can be an example of that type of conduct. Legal advice should be sought immediately in such a case.

Remember, that the District Attorney is not acting to compensate the victim but to protect the society. While some DA’s will insist that the defendant should pay restitution to the victim, most DA’s will advise the victims to seek compensation in civil court. The average DA has hundreds of cases, little experience in civil law and little desire to add to their workload by insisting upon restitution. They often see that as the job of the civil attorney retained by the victim.