Assault and Battery: Civil vs. Criminal Cases

The same conduct can give rise to both civil and criminal liability. Here's how.

By , J.D.

Assault and battery are intentional torts, meaning they can serve as the basis for a civil lawsuit demanding compensation in the form of money damages. But in every state, assault and battery are also crimes, meaning that assault and battery can also result in prosecution by the state and, if the accused is found guilty, can result in jail time. How can the same actions result in two very different court cases? Read on to learn more about the difference between civil and criminal assault and battery.

"Assault and Battery" Defined

Criminal and civil assault and battery share largely the same definition, although each state has different criminal statutes that may vary slightly in the way they define the specific conduct and intent necessary to constitute a criminal act.

Usually, whether civil or criminal, an assault involves an action -- or threat of action -- by one person that puts another person in apprehension of imminent bodily harm.

Battery -- again, both civil and criminal -- is usually the logical extension of assault (a completed assault, in other words). An action that starts as an assault becomes a battery when there is an actual physical touching.

As an example, if a person raises a fist to you and you believe you're about to be punched, that person has committed an assault, since you're put in fear of an imminent punching. Even if the punch is never thrown, the threat of the punch is enough to constitute assault. If the same person follows through with the punch and connects with your body, you've been battered. Assault and battery are so intertwined that they are often referred to as one cause of action.

Civil Assault and Battery

Civil assault and battery are torts. A tort is a wrong committed by one person against another, causing damage. Specifically, civil assault and battery are intentional torts.

Most torts arise from a negligent act, meaning an act that was careless or reckless. "Regular" torts don't take the intent of the tortfeasor (the person committing the tort) into consideration. As long as the tortfeasor had a duty to act in a non-negligent manner, and they breached that duty and caused harm to someone, they are said to have committed the tort.

Intentional torts are torts that are committed on purpose. In addition to assault and battery, causes of action such as false imprisonment, slander, and fraud typically fall under this category. While the requirements of duty, breach, causation and damages are the same, the added element of the tortfeasor's intent is taken into consideration as well. If a plaintiff cannot prove that the tort was committed intentionally, it may be a case of negligence as opposed to an intentional tort. (Learn more: What is an Intentional Tort?)

Imagine you are standing in a parking lot loading groceries into your car. Another vehicle across the lane accelerates rapidly in reverse, directly toward you and your vehicle. That same simple set of facts can be illustrative of negligence, or it may amount to assault and battery. How?

First, consider that the driver was reaching for a fallen cellphone and slipped and hit the gas, causing the car to move quickly in reverse. If the driver strikes you or your vehicle, the driver has committed general negligence. He had a duty to operate his vehicle in a non-negligent manner, and he breached that duty and caused you harm.

Now imagine that, immediately prior to getting into his car, the driver was yelling and cursing at you for being in his way while he was trying to back out. Instead of dropping a cellphone and accidentally hitting the gas, the tortfeasor deliberately threw the car into reverse and drove toward you, slamming on the brakes at the last instant to avoid hitting you. You were legitimately apprehensive -- you were afraid he was going to run you over, in other words. The tortfeasor has intentionally placed you in apprehension of imminent physical harm, and has committed civil assault. If the driver actually hits you, he has committed civil battery. The driver's intent is key.

Learn more about Assault and Battery as Personal Injury Claims.

Criminal Assault and Battery

A crime occurs when an individual violates a criminal statute that prohibits and punishes certain conduct. Criminal cases are brought and prosecuted by the state, in the interest of protecting the public welfare. A jury of one's peers (or a judge) must agree that the government (usually represented by a district attorney) has proven -- beyond a reasonable doubt -- that the charged crime was committed by the defendant. If a guilty verdict is entered against the defendant, incarceration can follow.

As mentioned above, every state has criminal statutes pertaining to assault and battery. The criminal prosecution of assault and battery differs from a civil case in two important ways:

  • the burden of proof is stricter in a criminal case, and
  • there is the added requirement of proving the violation of a specific criminal statute, as worded by the legislature.

Using the parking lot example above, the driver could be charged with assault and battery if he intended to strike you with his vehicle and there were laws prohibiting such behavior (which, again, are on the books in every state).

A verdict of not-guilty in a criminal assault or battery case does not prevent a victim from filing a civil suit for the same action. Since civil suits involve monetary damages and aren't brought by the state, double jeopardy rules (which prohibit trying a person more than once for the same actions) are inapplicable. A person can be found not-guilty of a crime, but can still be found civilly liable and be forced to pay damages arising out of the same incident. The best modern example of this is the O.J. Simpson trial, where he was found not-guilty of the crime of murder, but was later found civilly liable for the wrongful death of the victims.

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