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. | Updated by Stacy Barrett, Attorney

If you've been the victim of an assault and battery, you can sue your assailant in civil court for damages (money). Your assailant might also face criminal prosecution and punishment. Assault and battery are civil wrongs and crimes.

In this article, we'll cover:

  • the legal definitions of assault and battery
  • the differences between a civil and criminal assault and battery case, and
  • what to do if you've been assaulted.

"Assault and Battery" Defined

The legal definitions of assault and battery are similar in civil and criminal cases, though they may vary slightly from state to state. An assault is an action by one person that puts another person in fear of immediate harmful or offensive physical contact. A battery is essentially a completed assault—actual harmful or offensive physical contact.

For example, let's say your cousin raised a fist at you while threatening to punch you in the face at a holiday dinner. If you were afraid that your cousin was actually going to punch you, you were assaulted. Even if your cousin never threw a punch, the threat of the punch alone was an assault. If your cousin threw a punch and hit you, you were battered.

Assault and battery are so intertwined that they are often charged together and referred to as one cause of civil action. Learn more about the differences between assault, battery, and aggravated assault.

Civil Assault and Battery

Civil assault and battery are "torts." A tort is a wrongful act that causes harm. Most torts result from negligence (carelessness), like car accidents. But other torts, like assault and battery, are intentional acts.

Intentional torts are torts that are committed on purpose. Some examples of intentional torts include:

A similar set of facts can look like ordinary negligence or amount to an assault and battery. How? Let's take a look.

Imagine you're standing in a parking lot loading groceries into your car when another car across the lane accelerates rapidly toward you and your vehicle. You freeze and scream in fear.

If the driver was reaching for a fallen cell phone and slipped and hit the gas, causing the car to accelerate toward you, the driver has committed ordinary negligence. All drivers have a duty to operate their vehicles in a safe manner and this driver violated that duty by driving while distracted. If the driver hit you or your car, you could file a car accident lawsuit against the driver.

Now, if the driver was yelling and cursing at you to get out of the way and deliberately accelerated toward you, slamming on the brakes at the last second to avoid hitting you, the driver assaulted you. The driver intentionally placed you in fear of immediate physical harm. You were afraid and your fear was reasonable under the circumstances. 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 to increase public safety. The government (usually represented by a district attorney) has to prove criminal charges to a judge or jury beyond a reasonable doubt. Potential criminal penalties include fines, community service, probation, jail or prison, and restitution.

A verdict of not guilty in a criminal assault or battery case does not prevent a victim from filing a civil suit over the same act. Civil lawsuits are about money, not criminal punishment, so double jeopardy rules don't apply. A famous example of how this works is the O.J. Simpson case. Simpson was found not guilty of murdering Nicole Brown Simpson and Ronald Goldman yet a civil court held him legally liable (responsible) for their deaths.

What to Do If You've Been Assaulted

If you've been assaulted, it's important to protect yourself and your legal rights.

  • Get medical attention. If you're hurt, go to the doctor. Getting treatment will help you recover and support a personal injury claim against your assailant.
  • Call the police. If you want your assailant to be criminally prosecuted, you'll have to call the police. An officer will investigate what happened and write a report. Prosecutors will look at the report and decide whether to file criminal charges. Calling the police isn't a guarantee that charges will be filed. Learn more about how the prosecutor decides which cases to charge.
  • Gather evidence. Get the names and contact information of anyone who witnesses the assault. You'll also want to take pictures of anything that might help you show that you were assaulted and how you were harmed. You can use the evidence you gather if you decide to file a personal injury claim against your assailant.

Learn more about preserving evidence for your personal injury claim.

Getting Help After an Assault and Battery

If you've been hurt in an assault and battery, it can be hard to know what to do. You might be a witness in the criminal prosecution or you might be wondering why your assailant hasn't been criminally charged. A lawyer can answer your questions and advise you about your rights in criminal and civil court.

If you've been accused of assault and battery, talk to a criminal defense attorney about your rights. A lawyer will talk to you about potential defenses and explain the basics of criminal law.

Learn more about hiring and working with lawyers. You can also connect with a lawyer directly from this page for free.

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