Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand, assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, assault may refer only to the threat of violence caused by an immediate show of force.[1][2]
Assault is often defined to include not only violence, but any physical contact with another person without their consent. In common law jurisdictions, including England and Wales and the United States, battery is the crime that represents the unlawful physical contact, though this distinction does not exist in all jurisdictions. Exceptions exist to cover unsolicited physical contact which amount to normal social behavior known as de minimis harm.
In most jurisdictions, the intention to cause grievous bodily harm (or its equivalent) may amount to the mental requirement to prefer a charge of murder in circumstances where the harm inflicted upon the victim proves fatal.[3]
At common law criminal assault was an attempted battery. The elements of battery are (1) a volitional act[4] (2) done for the purpose of causing an harmful or offensive contact with another person or under circumstances that make such contact substantially certain to occur and (3) which causes such contact.[5] Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses. The fact that the person may have been unaware that the rock had been thrown at him is irrelevant under this definition of assault. Some jurisdictions have incorporated the definition of civil assault into the definition of the crime making it a criminal assault to intentionally place another person in "fear" of a harmful or offensive contact. "Fear" means merely apprehension - awareness rather than any emotional state.
Aggravated assault
Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon.[6] A person has committed an aggravated assault when that person:
- attempts to cause serious bodily injury to another person
- causes such injury purposely, knowingly, or recklessly in circumstances where the person has exhibited indifference to human life
- attempts or causes bodily injury to another person with a deadly weapon.
General defenses to assaults
Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:
Consent
Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognized good reason for the assault.[7] This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognized good reasons for consent include; surgery, activities within the rules of a game (Mixed martial arts), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognized as a defense of consent. In Scottish Law, consent is not a defense for assault.
Arrest and other official acts
Police officers and court officials have a general power to use force for the purpose of effecting an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary.
Punishment
In some jurisdictions such as Singapore, judicial caning and other forms of corporal punishment are a part of the legal system. The officers who physically administer the punishment have immunity from prosecution for assault.
Some states also permit the use of less severe corporal punishment for children in school and at home by their parents. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
Prevention of crime
This may or may not involve self defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.
Defense of property
Some states allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help. Furthermore, some states, such as Ohio, allow residents in their homes to use force when ejecting an intruder. The resident merely needs to assert to the court that he felt threatened by the intruder's presence.
Canada
The expression assault is defined by section 265 of the Canadian Criminal Code.
Similar to the United States, there are many different ways in which an assault can occur. Generally an assault occurs when a person directly or indirectly applies force intentionally to another person. An assault can also occur when a person attempts to assault another or threatens to do so without the consent of the other person. An injury need not occur for an assault to be committed. The force used must be offensive in nature with an intention to apply force. Therefore, in certain circumstances, a “tap”, “pinch”, “push”, or other minor physical action can be considered an assault. An accidental application of force is not an assault. The potential punishment for an assault in Canada varies depending on the manner in which the charge proceeds through the court system and the type of assault that is committed.
Assault
The offence is created by section 266 of the Code.
Assault with a weapon
Section 267(a) of the Code.
Assault causing bodily harm
See assault causing bodily harm.
Aggravated assault
Section 268 of the Code.
Assaulting a peace officer, etc.
Section 270 of the Code.
Sexual assault
Section 271 of the Code.
Sexual assault with a weapon or threats or causing bodily harm
Section 272 of the Code.
Aggravated sexual assault
See aggravated sexual assault.
India
In India, Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit as assault.
However, mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
Nigeria
Chapter 29 of Part V of the Criminal Code Act (sections 351 to 365) creates a number of offences of assault.[8]
Assault is defined by section 252 of that Act.[9]
Pacific Islands
Marshall Islands
The offence of assault is created by section 113 of the Criminal Code.[10] A person is guilty of this offence if he unlawfully offers or attempts, with force or violence, to strike, beat, wound, or do bodily harm to, another.
Republic of Ireland
Section 2 of the Non-Fatal Offences Against the Person Act 1997 creates the offence of assault, and section 3 of that Act creates the offence of assault causing harm.
United Kingdom
Assaults on customs and excise officers, etc.
Section 16(1)(a) of the Customs and Excise Managment Act 1979 (c.2) provides that it is an offence to, amongst other things, assault any person duly engaged in the performance of any duty or the exercise of any power imposed or conferred on him by or under any enactment relating to an assigned matter, or any person acting in his aid.
For the meaning of "assault" in this provision, see Logdon v. DPP [1976] Crim LR 121, DC.
Attacks on internationally protected persons
Section 1(1)(a) of the Internationally Protected Persons Act 1978 (c.17) makes provision for assault occasioning actual bodily harm or causing injury on "protected persons" (including Heads of State).
Attacks on UN Staff workers
Section 1(2)(a) of the United Nations Personnel Act 1997 (c.13) makes provision for assault causing injury, and section 1(2)(b) makes provision for assault occasioning actual bodily harm, on UN staff.
England and Wales
Common assault and battery
There are two offences: common assault and battery. A person commits the offence strictly known as assault or common assault if he intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. (It is submitted that "violence" in this context means any unlawful touching, though there is some debate over whether the touching must also be hostile).
Confusingly, the terms "assault" and "common assault" often encompass the separate offence of battery, even in statutory settings such as s 40(3)(a) of the Criminal Justice Act 1988.
Causing a person to apprehend violence can be committed by way of action or words: R v. Ireland [1997] AC 147. Of course, words can also mean that otherwise threatening actions are rendered not capable of being an assault, as in the case of Tuberville v. Savage (1669) 1 Mod 3, T. In that case, the plaintiff told the defendant (while putting his hand on his sword) that he would not stab him, because the circuit judge was visiting town for the local assizes. On that basis, the defendant was deemed to have known that he was not about to be injured, and it was held that no assault had been committed by the plaintiff (so as to justify the defendant's allegedly pre-emptive strike).
The "immediacy" required has been the subject of some debate. The leading case, again, is R v. Ireland [1998] AC 147. The House of Lords held that the making of silent telephone calls could amount to an assault, if it caused the victim to believe that physical violence might be used against him in the immediate future. One example of "immediacy" adopted by the House in that case was that a man who said, "I will be at your door in a minute or two," might (in the circumstances where those words amounted to a threat) be guilty of an assault.
A common assault is an assault that lacks any of the aggravating features which Parliament has deemed serious enough to deserve a higher penalty. Section 39 of the Criminal Justice Act 1988 provides that common assault, like battery, is triable only in the magistrates court in England and Wales (unless it is linked to a more serious offence which is triable in the Crown Court). Additionally, if a Defendant has been charged on an indictment with assault occasioning actual bodily harm (ABH), or racially/religiously aggravated assault, then a jury in the Crown Court may acquit the Defendant of the more serious offence, but still convict of common assault if it finds common assault has been committed.
Aggravated assaults
Assault occasioning actual bodily harm
The offence of assault occasioning actual bodily harm is created by section 47 of the Offences against the Person Act 1861.
Assault with intent to rob
The penalty for assault with intent to rob is provided by section 8(2) of the Theft Act 1968.
Racially or religiously aggravated common assault
This offence is created by section 29(1)(c) of the Crime and Disorder Act 1998. If an assault is prosecuted as being racially or religiously aggravated, then it is triable either way and the maximum penalty in this case is up to two years' imprisonment, or a fine, or both.
Racially or religiously aggravated assault occasioning actual bodily harm
This offence is created by section 29(1)(b) of the Crime and Disorder Act 1998.
Assault with intent to resist arrest
This offence is created by section 38 of the Offences against the Person Act 1861. The offender may intend to resist either his own or someone else's arrest. This offence is also triable either way, and punishable by up to two years' imprisonment.
Assault on a constable in the execution of his duty
This offence is created by section 89(1) of the Police Act 1996 and is triable only in the magistrates court, so the maximum sentence is twelve months' imprisonment. The "starting sentence," however, is a short custodial sentence, and it is considered a more serious offence than common assault.
The constable (normally a police officer) must be acting "in the execution of his duty" for this offence to be made out. If he exceeds the remit of his duty (e.g. acts unlawfully in assaulting the Defendant), the offence will not be made out.
The Defendant does not actually have to be aware that the person he is assaulting is a constable (Forbes (1865) 10 Cox CC 362).
The fact that the victim is a police officer is not, in itself, an aggravating factor which would justify more serious charge. The criteria for a charge under under section 47 of the Offences against the Person Act 1861 do not distinguish between members of the public and police officers as the victim. Under section 89(1) of the Police Act 1996, it is an offence for a person to assault either:
- a constable acting in the execution of their duty; or
- a person assisting a constable in the execution of their duty.
This is a summary offence which carries a maximum penalty of six months' imprisonment and/or a fine. According to R (Fullard) v Woking Magistrates' Court (2005) EWHC 2922 (Admin) a constable cannot be acting in the execution of their duty when unlawfully on private property. Thus, if the officer is not acting under the authority of a warrant, acting under a statutory or common law power of entry, or in hot pursuit, the person lawfully in possession of land is entitled to withdraw permission for the officer to remain. Should the officer refuse to leave, the officer will cease to be "acting in the execution of their duty". To make an effective withdrawal of permission, clear words must be used. Merely directing offensive remarks at the officer which amount to 'go away' will not necessarily withdraw any implied permission to enter or remain. Further, when properly required to leave, the officer must be allowed a reasonable opportunity to leave. However, once the opportunity to leave voluntarily has passed, it will not be an assault for the land owner to use reasonable force to cause the officer to leave.
However, motive may aggravate when the purpose of the assault is an intent to resist or prevent lawful arrest. Under section 38 of the Offences against the Person Act 1861, this is a hybrid offence, which carries a maximum penalty on indictment of two years' imprisonment and/or an unlimited fine. This offence may also be used for assaults on store detectives or members of the public exercising a right to apprehend or detain an alleged offender committing an arrestable offence.
Assault on a prison custody officer
This offence is created by section 90(1) of the Criminal Justice Act 1991 (c.53).
Assault on a secure training centre custody officer
This offence is created by section 13(1) of the Criminal Justice and Public Order Act 1994 (c.33).
Assault on officer saving wreck
This offence is created by section 37 of the Offences against the Person Act 1861.
Sexual assault
This offence is created by section 3 of the Sexual Offences Act 2003. It is not defined in terms of the offences of common assault or battery. It instead requires intentional touching and the absence of a reasonable belief in consent.
Offences which do not require an assault
The law of England and Wales recognises offences of personal injury which can be committed otherwise than by an assault. In particular, although they may be committed by an assault, it is not a necessary ingredient of either inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 or causing grievous bodily harm with intent contrary to section 18 of that Act: R v. Burstow; R v. Ireland [1998] AC 147, per Lord Steyn at p. 160.
Scotland
Assault
In Scots Law, assault is defined as an "attack upon the person of another".[11] The distinction in Scotland between assault and battery is not made, although as in England and Wales, assault can be occasioned without a physical attack on another's person, as demonstrated in Atkinson v. HM Advocate[12] where the accused was found guilty of assaulting a shop assistant by simply jumping over a counter wearing a ski mask, it being upheld that "an assault may be constituted by threatening gestures sufficient to produce alarm".
There are a number of 'aggravating factors' which may increase a charge of common assault to aggravated assault, such as severity of injury, the use of a weapon, or Hamesaken - to assault a person in his own home.
The mens rea for assault is simply "evil intent",[13] however this has been held to mean no more than that assault "cannot be committed accidentally or recklessly or negligently" as upheld in Lord Advocate's Reference No 2 of 1992 where it was found that a "hold up" in a shop justified as a joke would still constitute an offence.
Assault on a constable in the execution of his duty
Section 41 of the Police (Scotland) Act 1967 provides that it is an offence for a person to, amongst other things, assault a constable in the execution of his duty or a person assisting a constable in the execution of his duty.
Northern Ireland
Common assault and battery (summary offence)
See section 42 of the Offences against the Person Act 1861.
Aggravated assault and battery (summary offence)
See section 43 of the Offences against the Person Act 1861.
Common assault
See section 47 of the Offences against the Person Act 1861.
Assault occasioning actual bodily harm
See section 47 of the Offences against the Person Act 1861.
Assault with intent to resist arrest
This offence is created by section 7(1)(b) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c.28) (N.I.).
Formerly this offence was created by s.38 of OAPA 1861.
Assault on a constable in the execution of his duty
Section 66(1) of the Police (Northern Ireland) Act 1998 (c.32) provides that it is an offence for a person to, amongst other things, assault a constable in the execution of his duty, or a person assisting a constable in the execution of his duty.
This offence was formerly created by section 7(1)(a) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c.28) (N.I.), which was repealed by the 1998 Act.
United States
American common law has defined assault as an attempt to commit a battery.
Assault is typically treated as a misdemeanor and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony.
Four elements were required at common law:
- The apparent, present ability to carry out;
- An unlawful attempt;
- To commit a violent injury;
- Upon another.
Simple assault can be distinguished without the intent of injury upon another person. Simple assault can consist simply of the violation of one's personal space or touching in a way the victim deemed inappropriate. It is important to note, however, that in common law states an assault is not committed by merely, for example, swearing at another; without some evidence of a threat of battery, there can be no assault.
As the criminal law evolved, element one was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states.
Modern American statutes define assault as:
- an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or,
- negligently causing bodily injury to another with a deadly weapon.
Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.
States vary whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.
In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.
Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212[dead link]
Some possible examples of defenses, mitigating circumstances, or failures of proof are:
- A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.
- A defendant could also argue that he was engaged in mutually consensual behavior.
Ancient Greece
Assault in Ancient Greece was normally termed hubris. Contrary to modern usage, the term did not have the extended connotation of overweening pride, self-confidence or arrogance, often resulting in fatal retribution. In Ancient Greece, "hubris" referred to actions which, intentionally or not, shamed and humiliated the victim, and frequently the perpetrator as well. It was most evident in the public and private actions of the powerful and rich.
Violations of the law against hubris included what would today be termed assault and battery; sexual crimes ranging from forcible rape of women or children to consensual but improper activities, in particular anal sex with a man or a boy; or the theft of public or sacred property.[14] Two well-known cases are found in the speeches of Demosthenes, a prominent statesman and orator in ancient Greece. These two examples occurred when first, Meidias punched Demosthenes in the face in the theater (Against Meidias), and second when (in Against Konon) a defendant allegedly assaulted a man and crowed over the victim.
Hubris, though not specifically defined, was a legal term and was considered a crime in classical Athens. It was also considered the greatest sin of the ancient Greek world. That was so because it not only was proof of excessive pride, but also resulted in violent acts by or to those involved. The category of acts constituting hubris for the ancient Greeks apparently broadened from the original specific reference to mutilation of a corpse, or a humiliation of a defeated foe, or irreverent, "outrageous treatment", in general.
The meaning was eventually further generalized in its modern English usage to apply to any outrageous act or exhibition of pride or disregard for basic moral laws. Such an act may be referred to as an "act of hubris", or the person committing the act may be said to be hubristic. Ate, Greek for 'ruin, folly, delusion', is the action performed by the hero, usually because of his/her hubris, or great pride, that leads to his/her death or downfall.
Crucial to this definition are the ancient Greek concepts of honor (timē) and shame. The concept of timē included not only the exaltation of the one receiving honor, but also the shaming of the one overcome by the act of hubris. This concept of honor is akin to a zero-sum game. Rush Rehm simplifies this definition to the contemporary concept of "insolence, contempt, and excessive violence".
See also
References
- ^ Arkansas Code, Title 5, Chapter 13, Subchapter 2, § 205-207
- ^ California Penal Code, Part 1, Chapter 9, § 240
- ^ Cunningham [1982] AC 566
- ^ An act is volitional if it is purposeful and deliberate as opposed to reflexive or involuntary. For example. a person who has restless leg syndrome kicks his wife while asleep. The contact, although, harmful, would not constitute battery because the act was not wilful.
- ^ A criminal battery may also be committed if the harmful or offensive contact is due to the criminal negligence of the defendant.
- ^ "Crime in the United States 2004: Aggravated Assault". Federal Bureau of Investigation. http://www.fbi.gov/ucr/cius_04/offenses_reported/violent_crime/aggravated_assault.html.
- ^ (RvG ref 6. 1980): see R v Brown (1993) 2 All ER 75)
- ^ Criminal Code Act-PartV
- ^ Criminal Code Act-PartV
- ^ Criminal Code [31 MIRC Ch 1]
- ^ MacDonald, Criminal Law (5th edn, 1948) p.155
- ^ 1987 SCCR 534
- ^ MacDonald, op. cit, p.155; Smart v. HM Advocate 1975 JC 30
- ^ MacDowell (1976) p. 25.
External links
