What is the difference between assault and battery?

The difference between assault and battery is that an assault is a situation when someone only threatens or attempts to touch a victim. For battery charges, the victim is handled painfully, violently, or in an otherwise offensive way by the person committing the crime. Learn about defenses to battery and assault charges and more in our legal guide below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 14, 2021

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When talking about the essential difference between assault and battery, it comes down to the specific circumstances. In some jurisdictions, assault is defined as the threat of bodily injury that causes a reasonable fear of harm in the victim while battery is the actual physical injury or impact on another person.

If the victim has not actually been touched, but only threatened with physical harm (or a person attempted to touch them), then the crime is assault. If the victim has been touched in a painful, harmful, violent, or offensive way by the person committing the crime, this might be battery. Even minor offensive touching without any physical injuries can qualify as the crime of battery providing it is painful, harmful, or offensive contact to the victim.

So, what’s worse: assault or battery?

Read on below to find out how to distinguish between assault and battery. Enter your ZIP code below if you need further help.

How do assault and battery charges vary across jurisdictions?

In certain jurisdictions, assault and battery are often paired together as one offense. The reason for this is when someone commits battery their intention is to cause bodily injury, and they often threaten the person before committing the physical act stating their criminal intent to inflict bodily injury. Battery is a criminal offense that includes unlawful touching and physical contact, whereas assault is the act of creating apprehension of such contact.

There are also different degrees of battery including first degree, second degree, and third degree. Each degree describes how serious the crime may be. The type of assault, the extent of violence, and the levels of harm caused can be factors in what types of charges the offender will face.

In other jurisdictions, assault is defined in broader terms as having any intentional physical contact with or intentional touching an individual without their consent or threat of violence. In these states, the definition of assault encompasses the definition of battery of other jurisdictions. Further, like the states that have separate definitions for assault and battery, these jurisdictions generally have three degrees of assault. The degrees of an assault charge determine the range of penalties to be administered for the crime.

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Are there degrees of assault?

First-degree assault, the level of assault that applies the harshest punishment, generally includes severe injury and bodily harm from a physical attack and extreme harmful contact and indifference for the value of human life. Instead of using the category “first-degree assault,” some jurisdictions will use the term this physical violence aggravated assault, which is just another way of saying it’s the most serious form of assault.

Aggravated assault or first-degree assault will usually include the use of a dangerous weapon in its definition. Second-degree assault will usually include the use of a dangerous or deadly weapon as well, but what makes second-degree assault different from first-degree assault is either the intent behind the bodily harm or the level of bodily harm. Third-degree assault or simple assault is the form of assault that receives the lightest penalties. Simple assault is when a person attempts to injure another person, but does not, or when a person does injure a person, just not physically.

What is the punishment for assault and battery?

Regardless of which definition the jurisdiction uses, the broader definition of assault, or separate definitions for assault and battery, a crime of this nature in the first-degree (or aggravated) is classified as a felony, which of course will make the defendant a felon. Depending on the state, it is punishable by consequences of 5-25 years imprisonment. A crime of this nature in the second degree is also usually classified as a felony, and depending on the state, is punishable by 1-20 years in prison. A crime of this nature in the third degree is usually classified as a misdemeanor, which means that the person will not spend more than a year in jail for the crime. This is the same for the jurisdictions that define an assault offense as only the threat of harm. If the victim is an elderly individual or a disabled individual, the offense is considered a Class A misdemeanor.

A conviction for misdemeanor assault requires the prosecution to prove beyond a reasonable doubt that the defendant caused intentional harm and bodily injury to another person; intentionally put someone in reasonable apprehension of imminent physical injury; touched someone with the intent to injure, insult, or provoke them.

Moreover, an aggravated battery is a more severe offense than a simple battery. An aggravated battery is a crime that causes serious bodily injury or great bodily harm to the victim.

Less severe forms of aggravated assault or battery exist. However, if the state finds you guilty of a more serious charge, even with no prior legal trouble, you may get a mandatory minimum prison sentence of 5 years.

What are variations of assault and punishments?

Other variations of assault charges include sexual assault (which can include rape and statutory rape), assault on a minor or juvenile, assault on a peace officer, assault with intent to murder, and gang assault. These are all generally classified as felonies. All of the above charges carry jail time and fines as well, and the charges are almost always enhanced if the person has a prior offense on their record.

What are possible defenses for assault and battery?

While the definitions of degrees of assault or battery vary by jurisdiction, the most common defense to an assault or battery charge throughout all jurisdictions is mutual consent. Mutual consent is when both parties agree to the situation, meaning that there was not a one-sided attack. Other common defenses to assault and battery charges include self-defense, defense of others, or defense of property. However, these defenses can only be used when the force used to defend oneself or others was proportionate to the assault or battery the individual intended to stop.

Any defendant charged with assault or battery should consult an experienced criminal defense attorney for the best available defense to the charge.

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What are criminal versus civil versions of assault and battery?

Now that we know what is the difference between assault and battery, let’s find out the difference between criminal and civil assault and battery. The short answer is that civil cases require the added element of damages. For example, if someone punches you in the face, you probably will not get medical bills, lost wages, or pain and suffering, and attorney expenses for filing a civil lawsuit, but that does not mean you could not press criminal charges. So, if someone threatens you, do not wait for the situation to escalate. The law will be able to fix problems after they have occurred, and often that can be too late.

To sum up, assault is defined as an attempt or threat to cause bodily injury to another person, while battery occurs when there is actual harm or offensive contact with another person. Moreover, the latter also happens even if the touching takes place through the victim’s clothing or indirectly, with a certain object that the defendant uses to touch the victim.

If a defendant has been wrongly accused of any assault or battery charge, s/he can raise a legal defense to reduce or even dismiss a criminal charge. However, it is best to have an experienced criminal defense attorney act on behalf of the accused.

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