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ⓘ Assault




Assault
                                     

ⓘ Assault

An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

Traditionally, common law legal systems had separate definitions for assault and battery. When this distinction is observed, battery refers to the actual bodily contact, whereas assault refers to a credible threat or attempt to cause battery. Some jurisdictions combined the two offences into assault and battery, which then became widely referred to as "assault". The result is that in many of these jurisdictions, assault has taken on a definition that is more in line with the traditional definition of battery. The legal systems of civil law and Scots law have never distinguished assault from battery.

Legal systems generally acknowledge that assaults can vary greatly in severity. In the United States, an assault can be charged as either a misdemeanor or a felony. In England and Wales and Australia, it can be charged as either common assault, assault occasioning actual bodily harm ABH or grievous bodily harm GBH. Canada also has a three-tier system: assault, assault causing bodily harm and aggravated assault. Separate charges typically exist for sexual assaults, affray and assaulting a police officer. Assault may overlap with an attempted crime; for example an assault may be charged as an attempted murder if it was done with intent to kill.

                                     

1.1. Related definitions Battery

In jurisdictions that make a distinction between the two, assault usually accompanies battery if the assailant both threatens to make unwanted contact and then carries through with this threat. See common assault. The elements of battery are that it is a volitional act, done for the purpose of causing a harmful or offensive contact with another person or under circumstances that make such contact substantially certain to occur, and which causes such contact.

                                     

1.2. Related definitions Aggravated assault

Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person attempts to:

  • have sexual relations with a person who is under the age of consent
  • cause serious bodily injury to another person with a deadly weapon
  • cause bodily harm by recklessly operating a motor vehicle during road rage; often referred to as either vehicular assault or aggravated assault with a motor vehicle.

Aggravated assault can also be charged in cases of attempted harm against police officers or other public servants.

                                     

2.1. Defenses Consent

Exceptions exist to cover unsolicited physical contact which amount to normal social behavior known as de minimis harm. Assault can also be considered in cases involving the spitting on, or unwanted exposure of bodily fluids to others.

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. 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, bodily adornment R v Wilson Crim LR 123. 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.

                                     

2.2. Defenses Arrest and other official acts

Police officers and court officials have a general power to use force for the purpose of performing 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.

                                     

2.3. Defenses Punishment

In some jurisdictions such as Singapore, judicial corporal punishment is part of the legal system. The officers who administer the punishment have immunity from prosecution for assault.

In the United States, the United Kingdom, Australia and Canada, corporal punishment administered to children by their parent or legal guardian is not legally considered to be assault unless it is deemed to be 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.

Many countries, including some US states, also permit the use of corporal punishment for children in school. In English law, s. 58 Children Act 2004 limits the availability of the lawful correction defense to common assault under s. 39 Criminal Justice Act 1988.

                                     

2.4. Defenses 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.

                                     

2.5. Defenses Defense of property

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 they felt threatened by the intruders presence.

This defense is not universal: in New Zealand for example homeowners have been convicted of assault for attacking burglars.

                                     

3. Regional details

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.

Assault with further specific intent

  • Acts done to the person with intent to murder
  • Use or possession of a weapon to resist arrest
  • Wounding or grievous bodily harm

Kansas

In Kansas the law on assault states:

Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.

North Dakota

North Dakota law states:

Simple assault.

  • A person is guilty of an offense if that person

Tennessee

In Tennessee assault is defined as follows:

39-13-101. Assault.

                                     

3.1. Regional details Canada

Assault is an offence under s. 265 of the Canadian Criminal Code. There is a wide range of the types of assault that can occur. Generally, an assault occurs when a person directly or indirectly applies force intentionally to another person without their consent. It can also occur when a person attempts to apply such force, or threatens to do so, without the consent of the other person. An injury need not occur for an assault to be committed, but the force used in the assault must be offensive in nature with an intention to apply force. It can be an assault to "tap", "pinch", "push", or direct another such minor action toward another, but 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. The Criminal Code defines assault as a dual offence indictable or summary offence. Police officers can arrest someone without a warrant for an assault if it is in the publics interest to do so notwithstanding S.4952d of the Code. This public interest is usually satisfied by preventing a continuation or repetition of the offence on the same victim.

Some variations on the ordinary crime of assault include:

  • Aggravated assault: Section 268 of the Code.
  • Assault with a weapon: Section 267a of the Code.
  • Assault causing bodily harm: See assault causing bodily harm Section 267b of the Code.
  • Sexual assault: Section 271 of the Code.
  • Assaulting a peace officer, etc.: Section 270 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.
  • Assault: The offence is defined by section 265 of the Code.

An individual cannot consent to an assault with a weapon, assault causing bodily harm, aggravated assault, or any sexual assault. Consent will also be vitiated if two people consent to fight but serious bodily harm is intended and caused R v Paice; R v Jobidon. A person cannot consent to serious bodily harm.



                                     

3.2. Regional details India

The Indian Penal Code covers the punishments and types of assault in Chapter 16, sections 351 through 358.

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 an assault.

The Code further explains that "mere words do not amount to an assault. But the words which a person uses may give to their gestures or preparation such a meaning as may make those gestures or preparations amount to an assault". Assault is in Indian criminal law an attempt to use criminal force with criminal force being described in s.350. The attempt itself has been made an offence in India, as in other states.

                                     

3.3. Regional details Pacific Islands

Marshall Islands

The offence of assault is created by section 113 of the Criminal Code. A person is guilty of this offence if they unlawfully offer or attempt, with force or violence, to strike, beat, wound, or do bodily harm to, another.

                                     

3.4. Regional details 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.

                                     

3.5. Regional details South Africa

South African law does not draw the distinction between assault and battery. Assault is a common law crime defined as "unlawfully and intentionally applying force to the person of another, or inspiring a belief in that other that force is immediately to be applied to him". The law also recognises the crime of assault with intent to cause grievous bodily harm, where grievous bodily harm is defined as "harm which in itself is such as seriously to interfere with health". The common law crime of indecent assault was repealed by the Criminal Law Sexual Offences and Related Matters Amendment Act, 2007, and replaced by a statutory crime of sexual assault.

                                     

3.6. Regional details United Kingdom

Piracy with violence Section 2 of the Piracy Act 1837 provides that it is an offence, amongst other things, for a person, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, to assault, with intent to murder, any person being on board of or belonging to such ship or vessel. Assault on an officer of Revenue and Customs This offence relating to officers of HMRC is created by section 321 of the Commissioners for Revenue and Customs Act 2005. Assaulting an immigration officer This offence is created by section 221 of the UK Borders Act 2007. Assaulting an accredited financial investigator This section is created by section 453A of the Proceeds of Crime Act 2002. Assaulting a member of an international joint investigation team This offence is created by section 572 of the Serious Organised Crime and Police Act 2005. Attacks on internationally protected persons Section 11a 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 12a of the United Nations Personnel Act 1997 c.13 makes provision for assault causing injury, and section 12b makes provision for assault occasioning actual bodily harm, on UN staff. Assault by person committing an offence under the Night Poaching Act 1828 This offence is created by section 2 of the Night Poaching Act 1828.

Abolished offences:

Assault on customs and excise officers, etc. Section 161a of the Customs and Excise Management Act 1979 c.2 provided that it was 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 n assault may be constituted by threatening gestures sufficient to produce alarm

Scottish law also provides for a more serious charge of aggravated assault on the basis of such factors as severity of injury, the use of a weapon, or Hamesuken to assault a person in their own home. The mens rea for assault is simply "evil intent", although this has been held to mean no more than that assault "cannot be committed accidentally or recklessly or negligently" as upheld in Lord Advocates 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.

It is a separate offence to assault on a constable in the execution of their duty, under Section 90, Police and Fire Reform Scotland Act 2012 previously Section 41 of the Police Scotland Act 1967) which provides that it is an offence for a person to, amongst other things, assault a constable in the execution of their duty or a person assisting a constable in the execution of their duty.



                                     

3.7. Regional details Northern Ireland

Several offences of assault exist in Northern Ireland. The Offences against the Person Act 1861 creates the offences of:

  • Common assault: under section 47
  • Aggravated assault and battery: a summary offence, under section 43
  • Assault occasioning actual bodily harm: under section 47
  • Common assault and battery: a summary offence, under section 42;

The Criminal Justice Miscellaneous Provisions Act Northern Ireland 1968 creates the offences of:

  • Assault with intent to resist arrest: under section 71b; this offence was formerly created by s.38 of the OAPA 1861.

That Act formerly created the offence of Assault on a constable in the execution of his duty. under section 71a, but that section has been superseded by section 661 of the Police Northern Ireland Act 1998 c.32 which now 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.



                                     

3.8. Regional details Australia

The term assault, when used in legislation, commonly refers to both common assault and battery, even though the two offences remain distinct. Common assault involves intentionally or recklessly causing a person to apprehend the imminent infliction of unlawful force, whilst battery refers to the actual infliction of force.

Each state has legislation relating to the act of assault, and offences against the act that constitute assault are heard in the Magistrates Court of that state or indictable offences are heard in a District or Supreme Court of that State. The legislation that defines assault of each state outline what the elements are that make up the assault, where the assault is sectioned in legislation or criminal codes, and the penalties that apply for the offence of assault.

In New South Wales, the Crimes Act 1900 defines a range of assault offences deemed more serious than common assault and which attract heavier penalties. These include:

                                     

3.9. Regional details Assault with further specific intent

  • Acts done to the person with intent to murder
  • Use or possession of a weapon to resist arrest
  • Wounding or grievous bodily harm
                                     

3.10. Regional details Assault causing certain injuries

  • Wounding - where there is breaking of the skin;
  • Grievous bodily harm - which includes the destruction of a foetus, permanent or serious disfiguring, and transmission of a grievous bodily disease
  • Actual bodily harm - the term is not defined in the Crimes Act, but case law indicates actual bodily harm may include injuries such as bruises and scratches, as well as psychological injuries if the injury inflicted is more than merely transient the injury does not necessarily need to be permanent
                                     

3.11. Regional details United States

In the United States, assault may be defined as an attempt to commit a battery. However, the crime of assault can encompass acts in which no battery is intended, but the defendants act nonetheless creates reasonable fear in others that a battery will occur.

Four elements were required at common law:

  • The apparent, present ability to carry out;
  • An unlawful attempt;
  • To commit a violent injury;
  • Upon another.

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.

The crime of assault generally requires that both the perpetrator and the victim of an assault be a natural person. Thus, unless the attack is directed by a person, an animal attack does not constitute an assault. However, the Unborn Victims of Violence Act of 2004 treats a 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.

Possible examples of defenses, mitigating circumstances, or failures of proof that may be raised in response to an assault charge include:

  • Lack of intent: A defendant could argue that since they were drunk, they could not form the specific intent to commit assault. This defense would most likely fail, however, since only involuntary intoxication is accepted as a defense in most American jurisdictions.
  • Mutual consent: A defendant could also argue that they were engaged in mutually consensual behavior. For example, boxers who are fighting in an organized boxing match and do not significantly deviate from the rules of the sport cannot be charged with assault.
                                     

3.12. Regional details State laws

Laws on assault vary by state. Since each state has its own criminal laws, there is no universal assault law. Acts classified as assault in one state may be classified as battery, menacing, intimidation, reckless endangerment, etc. in another state. Assault is often subdivided into two categories, simple assault and aggravated assault.

  • Aggravated assault involves more serious actions, such as an assault that is committed with the intent to cause a serious bodily injury, or an assault that is committed with a deadly weapon such as a firearm. Aggravated assault is typically classified as a felony offense.
  • Simple assault involves an intentional act that causes another person to be in reasonable fear of an imminent battery. Simple assault may also involve an attempt to cause harm to another person, where that attempt does not succeed. Simple assault is typically classified as a misdemeanor offense, unless the victim is a member of a protected class, such as being a law enforcement officer. Even as a misdemeanor, an assault conviction may still result in incarceration and in a criminal record.

Modern American statutes may define assault as including:

  • threatening another in a menacing manner.
  • negligently causing bodily injury to another with a dangerous weapon assault with a deadly weapon.
  • knowingly causing physical contact with another person knowing the other person will regard the contact as offensive or provocative
  • causing stupor, unconsciousness or physical injury by intentionally administering a drug or controlled substance without consent
  • causing bodily harm by reckless operation of a motor vehicle vehicular assault.
  • any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
  • purposely or knowingly causing reasonable apprehension of bodily injury in another
  • an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another

In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense to an assault charge such that an assault charge is prosecuted as a less significant offense such as a petty misdemeanor.

States vary on whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.

                                     

3.13. Regional details Kansas

In Kansas the law on assault states:

Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.

                                     

3.14. Regional details New York

In New York State, assault as defined in the New York State Penal Code Article 120 requires an actual injury. Other states define this as battery; there is no crime of battery in New York. However, in New York if a person threatens another person with imminent injury without engaging in physical contact, that is called "menacing". A person who engages in that behavior is guilty of aggravated harassment in the second degree when they threaten to cause physical harm to another person, and guilty of aggravated harassment in the first degree a Class E felony if they have a previous conviction for the same offense. New York also has specific laws against hazing, when such threats are made as requirement to join an organization.

                                     

3.15. Regional details North Dakota

North Dakota law states:

Simple assault.

  • A person is guilty of an offense if that person
                                     

3.16. Regional details Tennessee

In Tennessee assault is defined as follows:

39-13-101. Assault.

                                     

3.17. Regional details 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; or the theft of public or sacred property. 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 their hubris, or great pride, that leads to their 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".

                                     
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