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Look up assault in Wiktionary, the free dictionary. |
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Look up beat up in Wiktionary, the free dictionary. |
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| Criminal law |
|---|
| Part of the common law series |
| Element (criminal law) |
| Actus reus ยท Mens rea Causation ยท Concurrence |
| Scope of criminal liability |
| Complicity ยท Corporate ยท Vicarious |
| Inchoate offenses |
| Attempt ยท Conspiracy ยท Solicitation |
| Offence against the person |
| Assault ยท Battery False imprisonment ยท Kidnapping Mayhem ยท Sexual assault |
| Crimes against property |
| Arson ยท Blackmail ยท Burglary Embezzlement ยท Extortion False pretenses ยท Larceny Receiving stolen property Robbery ยท Theft |
| Crimes against justice |
| Compounding ยท Misprision Obstruction ยท Perjury Malfeasance in office Perverting the course of justice |
| Defenses to liability |
| Defense of self Defence of property Consent ยท Diminished responsibility Duress ยท Entrapment Ignorantia juris non excusat Infancy ยท Insanity Intoxication defense Justification ยท Mistake (of law) Necessity ยท Provocation |
| Other common law areas |
| Contracts ยท Evidence ยท Property Torts ยท Wills, trusts and estates |
| Portals |
| Criminal justice ยท Law |
Assault is a crime or tort 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.12
Assault is often defined to include not only violence, but any intentional physical contact with another person without their consent.citation needed 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 act4 (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.
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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:
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 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.
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.
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.
In the United States, United Kingdom, Australia and Canada, corporal punishment administered to children by their parent or legal guardian is consider an exception to the crime of assault unless it is considered excessive or unreasonable. What constitutes "reasonable" varies in both statutory law and case law. Unreasonable physical punishment may be charged as assault or under a separate statute for child abuse.
Some states also permit the use of less severe corporal punishment for children in school. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
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.
Some jurisdictions 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 jurisdictions, 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.
This defense is not universal: in New Zealand (for example) homeowners have been convicted of assault for attacking burglars.
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 โtapโ, โpinchโ, โpushโ, 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.
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.
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 Assault is not battery, because battery involves throwing a battery at someone. See Russian rule in the battery section.
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.
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.
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.
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.
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:
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:
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. 108-212dead link
Some possible examples of defenses, mitigating circumstances, or failures of proof are:
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 (timฤ) and shame. The concept of timฤ 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".
The above article is licensed under the GNU Free Documentation License. It uses material from the copyrighted Wikipedia "Assualt" article.