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One of the most common misconceptions we see in personal injury law is confusing assault and battery as being the same crime. When in reality, “Battery” and “Assault” are classified as two different crimes that are referred to as “Assault and Battery” when they occur together.

Assault is often applied in situations where threats of violence are made, while battery is more often applied to situations where actual physical violence is used.

In most states, these crimes are separate and have their own distinct elements that must be proven, but in a number of states, these offenses have been combined into one. Many states also apply the more serious penalty of aggravated assault or battery if the victim suffers serious injury or a deadly weapon was used in the attack.


While the definition of assault can vary heavily from state to state, it is typically defined as an attempt or the act of causing harm to someone else. In this case, the umbrella of the term “harm” can extend to include making threats or acting in a threatening way. In this sense, assault can occur when someone intentionally threatens to or causes harm to another person.

For an assault conviction to be brought about in court, it must be proven that a criminal act occurred. An act that qualifies is assault can be many things, but most often it is considered to be an act of assault if the action would put fear into a reasonable person regarding their safety. While threatening words can alone make a reasonable person feel as though their safety might be threatened, making verbal threats is often not enough of an act to be considered assault unless the threats are backed up with some action that makes the victim fear immediate harm.

Another element that must be proven in assault cases is general intent. What this means is that assault cannot be an accident for it to bring a conviction in a court of law. Just because an individual acts in a way that could be considered dangerous to others does not mean that they are committing assault, but if it can be proven that their intent was to cause harm, then it can be considered assault. On the other hand, if someone has the intention of scaring another person, this could be considered assault because the intention is there from the start.

Degrees of Assault

The crime of assault is broken into three different degrees in most states – first, second, and third.

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.

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 a dangerous or deadly weapon, but these assaults receive a lesser punishment than assaults of the first degree do.

Third-degree assault 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.


The definition of battery changes depending on which jurisdiction it occurs in, but it’s generally defined as making intentionally offensive or harmful contact with someone without their consent. So for battery to have occurred, a victim must have been intentionally touched, that touching must have been offensive or harmful, and there must have been no consent from the victim.

The victim does not need to be injured for a battery to have occurred either, only that offensive or harmful contact was made with them. For example, spitting on someone may not directly cause harm, but does create a sufficient level of contact that the interaction could be considered battery. In this context, “offensive” is often considered to be what would be offensive to a reasonable individual.

Different from assault, the intent of causing harm is not required for a battery charge. With battery, a person would only need to have an intent of contacting someone or intent to cause contact with an individual for it to be sufficient enough intent for the charge. In addition, the charge may instead be considered assault if someone acts in a negligent or criminally reckless way to create said contact with the victim. For example, bumping into someone, even if it was considered to be offensive by the victim, cannot be considered battery, but it may be able to be considered assault.

For a battery charge to be proven in court, it must be proven that an act that led to an offensive or harmful contact with the victim occurred. This act can be anything from a blatant physical attack to a small level of contact in some cases, as long as harmful or offensive contact was made.

Two boy students threatening another boy

Assault and Battery

While historically, assault and battery have been considered separate crimes, it’s becoming more common that statutes are considering these two crimes to be one and the same. Battery used to be considered as a “completed” assault, where there wasn’t just the threat of violence, but actual harmful physical contact had been made. Nowadays, statutes often refer to crimes where actual violence is involved, not just threatening behavior, as assaults as well.

Simple vs Aggravated Assault

In many states, a charge of aggravated assault can be brought about when the victim’s injuries are severe enough or when the use of a deadly weapon is involved in the crime. Unlike simple assault which is often considered to be a misdemeanor, aggravated assault is a felony. This type of charge is often used as a more severe punishment for assault cases & is commonly applied to cases where it can be proven that the assaulter had the intent of committing a more serious crime in the process.

For example, if a woman is walking down the street and she is assaulted and left on the road, this could be considered a simple assault. If the attacker struck her a couple of times, then started to rip her clothes off before she escaped, this would be considered aggravated assault because the attacker likely had the intention of raping the victim based on his actions.

In another example, if a victim is attacked with fists, then it is likely to be considered a simple assault. If a victim was attacked with a baseball bat, which could be considered a deadly weapon, the charge may be elevated to a felony aggravated assault as a result of the deadly weapon being involved in the crime.

Assault cases can also be elevated to aggravated assault in situations where a legally provided “special protection” is disregarded. One such example of this occurs when a member of a nursing home’s staff fondles an elderly patient. Since the elderly patient is part of a group given special legal protections against this type of violence, the nurse would be charge with aggravated assault rather than simple assault for violating these protections.

Filing a Civil Lawsuit to Recover Damages for Assault and Battery

While a majority of personal injury lawsuits are filed over accidental occurrences or negligence, the cause of damage in some cases is determined to have been intentional. In the context of personal injury, assault and battery are intentional crimes that a victim can sue to recover compensation for the damages they’ve suffered as a result of the assault or battery. If you or a loved one have been the victim or assault or battery, an experienced personal injury lawyer may be able to help you recover compensation for the damages sustained because of the incident.