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Assault vs Battery

One of the most common questions our assault and battery attorneys receive is what is the difference between an assault and battery. Although assault and battery may somewhat seem related under criminal charges, they are two different actions that a criminal perpetrator can take.

When filing a claim for assault and / or battery, it is very important to understand the difference that a victim suffers in order to accurately bring the legal claim against the at fault party. Although they may sound similar, battery and assault or two separate crimes that involve bodily harm.

What is the difference between assault and battery?


  • Assault occurs when a person intentionally places another in imminent apprehension of harmful or offensive contact.
  • Imminent: this means that a person must place someone in immediate fear.
  • Harmful contact: this is meant to cause some type of injury to the victim
  • Offensive contact: this refers to contact that seems to exceed someone’s dignity
  • In order for assault to occur, the victim must be aware of the assault and be placed in immediate fear. It is important to note that assault does not actually require any type of physical touching.
  • Assault is considered to be an attempted battery.
  • One could be charged with assault even if they did not cause any type of physical touching.

Aggravated assault

Aggravated assault refers to immediate apprehension of harmful or offensive contact when there has been a deadly weapon involved or there has been an assault on a law enforcement official. Aggravated assaults are more severe than regular assault, and have more severe punishments.

California Penal Code 240 defines the crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”

What are the different degrees of assault?

  1. First-degree assault, also known as aggravated assault in some jurisdictions, carries the harshest punishments of all degrees. For an assault to fit into the first-degree category, it will typically need to include severe indifference for the value of human life and extreme bodily harm.
  2. Second-degree assaults are different from first-degree assaults in the sense that the intent for bodily harm was different or the level of bodily harm is less severe. Most second-degree assaults still involve the use of a dangerous or deadly weapon, but these assaults receive a lesser punishment than assaults of the first degree do.
  3. Third-degree assaults are tied with the lightest punishments for this type of crime. Third-degree assaults typically occur when an individual attempts to harm another but fails, or when someone does suffer injuries, but those injuries are not physical.

Examples Of Assault

  • A man walks up to a diner and points a gun at the diner, then walks away.
  • A man threatening another car parked to the side of him that is stopped at a red light


Battery occurs when a person intentionally causes harmful or offensive contact.

  • Harmful contact: the contact must bring about some type of injury
  • Offensive contact: the contact must be outside the bounds of human dignity
  • There needs to be actual touching in the crime of battery.

Under California Penal Code Section 242: battery is defined as “any willful and unlawful use of force or violence upon the person of another.”

Examples Of Battery

  • Several children throw their toys at their teacher’s eye
  • A robber pulls an expensive jacket off of someone walking on the street
  • A man pushes someone out of his way while walking on the street

Aggravated battery

Aggravated battery occurs when the perpetrator engages in battery with a deadly weapon, or engages in battery with a police official. Aggravated battery includes more serious fines and longer prison time.

How are battery and assault charged?

Both battery and assault can be charged as a misdemeanor. Misdemeanor is less severe than a felony, and will require some jail time, along with substantial fines.

  • Assault: assault is charged with imprisonment for up to six months and / or a maximum fine of $1,000
  • Battery: battery is charged with imprisonment for up to six months and / or substantial fines beyond $1,000.

California Assault Statistics

Although the violent crime rate in California somewhat decreased in 2020, aggravated assaults were at an all-time high. Assaults went up 7.5% in California in the year 2020. 65% of all reported crimes in California were aggravated assaults.

Involvement of Drugs and Alcohol

Several studies have shown that those guilty of battery and / or assault in California and Nevada have been found to have cases of drugs and / or alcohol in their system. Usually, drugs and alcohol impair someone’s mental abilities in making conscious decisions, and many may engage in taking such abrupt decisions such as assault and battery.

Assault vs. Battery Frequently Asked Questions

Is punching someone a battery or assault?

Battery requires actual physical touching. So, punching someone is a battery rather than an assault.

What is more serious: assault or battery?

Assault is placing someone in fear, whereas battery is physical touching. Therefore, battery is considered to be more serious than assault.

Can you have a battery without assault?

It is possible to have a battery without assault, and to have an assault without a battery. You could have an assault by simply placing someone in fear, and you can have battery by causing physical touching. The assault merges into the battery claim.

What defenses can I raise for a crime of assault or battery?

If you have been charged with assault and / or battery there are a variety of defenses you could potentially raise. Examples of defenses include:

  • You did not act voluntarily: examples include experiencing a heart attack or a stroke that caused you to make an involuntary action against another party
  • You acted in self-defense: this usually means that the victim started the altercation by initially causing a battery or assault
  • You are falsely accused

Assault And Battery Attorneys in California

Contact our assault and battery attorneys located in California and Nevada for a free no risk consultation if you or a loved one have been a victim of battery and / or assault. Battery and assault claims could be very complex, especially if the victim suffered a variety of injuries. During your initial free no risk consultation, our attorneys will determine who the at-fault parties are, along with what crimes have taken place.

Our top rated assault and battery attorneys are available 24/7 via phone and email, and also have an office located in several major cities in California and Nevada, including Los Angeles, Las Vegas, Irvine, San Francisco, etc. Our attorneys dedicate ourselves to make sure that you are represented, and you seek maximum compensation for the injuries you have suffered from your battery and / or assault claim.

Our attorneys are on your side and available to assist you. We have decades of experience representing clients who have been injured in assault and battery cases. Contact us today.

***Disclaimer: This page is created by Heidari Law Group for educational purposes. This article provides a general understanding of the law. It does not provide specific advice. By using this site and reading through this page, there is no attorney-client relationship created between you and any member of Heidari Law. Further, due to the constant change of the law, some parts of the information above may no longer be good law.

Sam Heidari

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