Battery (crime)

Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the act of creating apprehension of such contact.

This article is about the crime. For the tortious aspects of battery, see Battery (tort). For other uses of the word "battery", see Battery.

Battery is a specific common law misdemeanor, although the term is used more generally to refer to any unlawful offensive physical contact with another person, and may be a misdemeanor or a felony, depending on the circumstances. Battery was defined at common law as "any unlawful and or unwanted touching of the person of another by the aggressor, or by a substance put in motion by him."[1] In more severe cases, and for all types in some jurisdictions, it is chiefly defined by statutory wording. Assessment of the severity of a battery is determined by local law.

Generally

Specific rules regarding battery vary among different jurisdictions, but some elements remain constant across jurisdictions. Battery generally requires that:

1. an offensive touch or contact is made upon the victim, instigated by the actor; and
2. the actor intends or knows that their action will cause the offensive touching.

Under the US Model Penal Code and in some jurisdictions, there is battery when the actor acts recklessly without specific intent of causing an offensive contact. Battery is typically classified as either simple or aggravated. Although battery typically occurs in the context of physical altercations, it may also occur under other circumstances, such as in medical cases where a doctor performs a non-consented medical procedure.

Specific countries

Canada

Battery is not defined in the Canadian Criminal Code. Instead, the Code has an offense of assault, and assault causing bodily harm.

England and Wales

Battery is a common law offence within England and Wales.

As with the majority of offences in the UK, it has two elements:

• Actus reus: The defendant unlawfully touched or applied force to the victim
• Mens rea: The defendant intended or was reckless as to the unlawful touch or application of force

This offence is a crime against autonomy, with more violent crimes such as ABH and GBH being punishable under the Offences against the Person Act 1861.

As such, even the slightest of touches can amount to an unlawful application of force.[2] However, it is assumed that everyday encounters (such as making contact with others on public transportation) are consented to and not punishable.[3]

Much confusion can come between the terms 'assault' and 'battery'. In everyday use the term assault may be used to describe a physical attack, which is indeed a battery. An assault is causing someone to apprehend that you will commit a battery. This issue is so prevalent that the crime of sexual assault[4] would be better labelled a sexual battery. This confusion stems from the fact that both assault and battery can be referred to as common assault.

There is no separate offence for a battery relating to domestic violence; however, the introduction of the crime of "controlling or coercive behaviour in an intimate or family relationship" in Section 76 of the Serious Crime Act 2015 has given rise to new sentencing guidelines[5] that take into account significant aggravating factors such as abuse of trust, resulting in potentially longer sentences for acts of battery within the context of domestic violence.

Whether it is a statutory offence

In DPP v Taylor, DPP v Little,[6] it was held that battery is a statutory offence, contrary to section 39 of the Criminal Justice Act 1988. This decision was criticised in Haystead v DPP[7] where the Divisional court expressed the obiter opinion that battery remains a common law offence.

Therefore, whilst it may be a better view that battery and assault have statutory penalties, rather than being statutory offences, it is still the case that until review by a higher court, DPP v Little is the preferred authority.[8]

Mode of trial and sentence

In England and Wales, it is a usually tried as a summary offence under section 39 of the Criminal Justice Act 1988. However, where section 40 applies, it can be an additional charge on an indictment.

It is punishable with imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

See the Crown Prosecution Service Sentencing Manual for case law on sentencing.

Russia

There is an offence which could be (loosely) described as battery in Russia. Article 116[9] of the Russian Criminal Code provides that battery or similar violent actions which cause pain are an offence.

Scotland

There is no distinct offence of battery in Scotland. The offence of assault includes acts that could be described as battery.

United States

In the United States, criminal battery, or simple battery, is the use of force against another, resulting in harmful or offensive contact, including sexual contact.[10] At common law, simple battery is a misdemeanor. The prosecutor must prove all three elements beyond a reasonable doubt:[11]

1. an unlawful application of force
2. to the person of another
3. resulting in either bodily injury or an offensive touching.

The common-law elements serve as a basic template, but individual jurisdictions may alter them, and they may vary slightly from state to state.

Under modern statutory schemes, battery is often divided into grades that determine the severity of punishment. For example:

• Simple battery may include any form of non-consensual harmful or insulting contact, regardless of the injury caused. Criminal battery requires intent to inflict an injury on another.
• Sexual battery may be defined as non-consensual touching of the intimate parts of another. At least in Florida, "Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object": See section 794.011.[12]
• Family-violence battery may be limited in its scope between persons within a certain degree of relationship: statutes for this offense have been enacted in response to increasing awareness of the problem of domestic violence.
• Aggravated battery generally is seen as a serious offense of felony grade. Aggravated battery charges may occur when a battery causes serious bodily injury or permanent disfigurement. As successor to the common law crime of mayhem, this is sometimes subsumed in the definition of aggravated assault. In Florida, Aggravated Battery is the intentional infliction of great bodily harm and is a second degree felony,[13] whereas battery that unintentionally causes great bodily harm is considered a third degree felony.[14]

Kansas

In the state of Kansas, battery is defined as follows:[15]

Battery.

(a) Battery is:

(1) Knowingly or recklessly causing bodily harm to another person; or

(2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner.

Louisiana

The law on battery in Louisiana reads:[16]

§ 33. Battery defined

Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.

Jurisdictional differences

In some jurisdictions, battery has recently been constructed to include directing bodily secretions (i.e., spitting) at another person without their permission. Some of those jurisdictions automatically elevate such a battery to the charge of aggravated battery. In some jurisdictions, the charge of criminal battery also requires evidence of a mental state (mens rea). The terminology used to refer to a particular offense can also vary by jurisdiction. Some jurisdictions, such as New York, refer to what, under the common law, would be battery as assault, and then use another term for the crime that would have been assault, such as menacing.

Distinction between battery and assault

A typical overt behavior of an assault is Person A chasing Person B and swinging a fist toward their head. That for battery is A striking B.

Battery requires:

• a volitional act, that
• results in a harmful or offensive contact with another person, and
• is committed for the purpose of causing a harmful or offensive contact or under circumstances that render such contact substantially certain to occur or with a reckless disregard as to whether such contact will result.

Assault, where rooted on English law, is an attempted battery or the act of intentionally placing a person in apprehension of a harmful or offensive contact with their person. Elsewhere it is often similarly worded as the threat of violence to a person while aggravated assault is the threat with the clear and present ability and willingness to carry it out. Aggravated battery is, typically, offensive touching without a tool or weapon with attempt to harm or restrain.

See also

• Assault (tort)
• Assault occasioning actual bodily harm
• Battery (tort)
• Non-fatal offences against the person in English law
• Right of self-defense

References

1. Clark, William Lawrence; Association, American Bar (1909), Elementary Law, pp. 117–18, retrieved 2009-08-01
2. R v Afolabi [2017] EWHC 2960
3. Collins v Wilcock [1984] 3 ALL ER 374 (QBD)
4. Sexual Offences Act 2003, Section 3 accessed 10 January 2018
5. "Overarching Principles: Domestic Abuse" (PDF). Sentencing Council. Sentencing Council. Archived from the original (PDF) on October 9, 2018.
6. DPP v Taylor, DPP v Little [1992] 1 QB 645, 95 Cr App R 28
7. Haystead v Chief Constable of Derbyshire [2000] EWHC 181 (QB) (12 May 2000), High Court (England and Wales)
8. Smith & Hogan (2008). Criminal Law. OUP. p. 584.
9. "ПРЕСТУПЛЕНИЯ ПРОТИВ ЖИЗНИ И ЗДОРОВЬЯ - Уголовный кодекс РФ (УК РФ) от 13 June 1996 N 63-ФЗ \ Консультант Плюс" [CRIMES AGAINST LIFE AND HEALTH - The Criminal Code of the Russian Federation (Criminal Code) of 13 June 1996 N 63-ФЗ Consultant Plus] (in Russian). Consultant.ru. Retrieved 2013-07-01.
10. Black's Law Dictionary Garner, p. 162
11. Larson, Aaron (12 February 2018). "What are the Crimes of Assault and Battery". ExpertLaw. Retrieved 15 March 2018.
12. "794.011 Sexual Battery Unspecified". offender.fdle.state.fl.us/. Florida Department of Law Enforcement. Archived from the original on February 16, 2007. Retrieved 4 March 2015.
13. "Florida Statute on Aggravated Battery". Florida Legislature.
14. "Florida Statute on Felony Battery". Florida Legislature.
15. "Kansas Statutes, Sec. 21-5413. Battery; aggravated battery; battery against certain persons; aggravated battery against certain persons". Kansas Legislature. 2017. Retrieved 15 March 2018.
16. "SUBPART B. ASSAULT AND BATTERY (WITH RELATED OFFENSES)". legis.la.gov/. Louisiana State Legislature. Retrieved 4 March 2015.