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In both criminal and civil law, a battery is the intentional touching of, or application of force to, the body of another person, in a harmful or offensive manner, and without consent. A battery is often confused with an assault, which is merely the act of threatening a battery, or of placing another in fear or apprehension of an impending and immediate battery. A battery is almost always preceded by an assault, which is why the terms are often used transitionally or combined, as in "assault and battery."
The Restatement (Second) of Torts, Sections 13 and 18, states that an actor commits a battery if he acts intentionally either to cause a harmful or offensive contact or to cause imminent apprehension of such a contact and a harmful or offensive contact actually occurs.
The difference between battery as a crime and battery as a civil tort is merely in the type of intent required. A criminal battery requires the presence of mens rea, or a criminal intent to do wrong, i.e., to cause a harmful or offensive contact. Accordingly, a defendant found guilty of the crime of battery is often sued by the defendant in a civil action for the same offense/incident.
Simple criminal battery is most often prosecuted as a misdemeanor. Repeat offenses or the specific nature of the offense may warrant more severe treatment. For example, in some states, a second or third offense against the same individual is a felony. In cases of domestic violence, many states do not permit battery charges to be dropped against the defendant, even at the request of the victim, because of the potential for repeat or escalated harm.
Most sexual crimes include elements of battery (since they are basically non-consensual contacts), and some states actually have penal codes listing the specific crime of "sexual battery."
Aggravated battery is a simple battery with an additional element of an aggravating factor. This is most often the addition of a weapon (whether use was real or merely threatened), and is almost always a felony offense. Other aggravated batteries include those committed against protected persons (children, the elderly or disabled, or governmental agents); those in which the victim suffers serious in-
A battery is an intentional tort. The elements to establish the tort of battery are the same as for criminal battery, excepting that criminal intentneed not be present. For a tortious battery to occur, the requisite intent is merely to touch or make contact without consent. It need not be an intention to do wrong, and the wrongdoer need not intend to cause the particular harm that occurs.
Battery is a general intent offense. This means that the actor need not intend the specific harm that will result from the unwanted contact, but only to commit an act of unwanted contact. This also means that gross negligence or even recklessness may provide the required intent or (in criminal matters) mens rea to find a battery.
The doctrine of transferred intent is also applicable. If one person intends to strike another, but the person moves out of the way to avoid being struck, causing the blow to hit a third person, both an assault (against the second person) and a battery (against the third person) have occurred, in both criminal and civil law.
This is important in the distinction between a battery and an assault. A battery involves actual contact. An assault is, in actuality, an incomplete battery; a person commits an assault if he or she intentionally places a person in apprehension of an impending battery. Conversely, if a persons intended only an assault (to cause apprehension of an imminent battery), and harmful or offensive contact actually occurs, the person has committed a battery as well as an assault.
This is also important in distinguishing accidental conduct. If a person violently slams into a fellow passenger on a moving public bus, there is no liability. But if, on the same public bus, there is only the slightest intentional touching of another, which is harmful or offensive and also non-consensual (such as reaching out and touching a woman's thigh), a battery has occurred.
Conversely, if there was only an intended assault, as in a person gesturing toward another in a menacing manner, and the person trips and actually crashes into the other person, both an assault and battery have occurred.
Non-consensual contact may be made with either a person or that person's extended personality. This means that if one person leans forward and yanks the jewelry necklace off another, a battery has occurred, even though the first person never actually touched the neck of the second person. If this act was preceded with an intent to cause the other to apprehend an impending violent yank of the necklace, both an assault and a battery have occurred. If the wrongdoer only intended an assault (causing the other to apprehend an impending violent yank of the necklace) but did not intend to actually complete the violent yank, and yet his hand made contact with, and actually yanked off the necklace, both an assault and a battery have occurred. In other words, if in the process of physically gesturing to violently yank the necklace off, contact is actually made and the necklace is pulled from the other's neck, a battery has occurred.
The tort rule of "extended personality" applies to both civil and criminal battery. For example, if a person threatens to spit into another's cup of coffee (clearly offensive and possibly harmful), and then proceeds to do so, both a criminal and civil battery have occurred. In another case involving the issue of extended contact, a Texas hotel manager was found guilty of a battery when he snatched away a patron's dinner plate in a "loud and offensive manner," even though the contact did not result in any physical harm to the diner.
A plaintiff or complainant in a case for battery does not have to prove an actual physical injury. Rather, the plaintiff must prove an unlawful and unpermitted contact with his or her person or property in a harmful or offensive manner. This, in and of itself, is deemed injurious. As in the case of the Texas hotel manager above, the harm may be offensive rather than physical, but equally worthy of compensation under the law.
Once there is palpable harm (be it physical, emotional, or monetary) all elements of a battery are present, and an aggrieved person may file charges. Of course, in criminal law, the state will file charges for battery, and the victim becomes a witness for the
Conversely, the victim of a battery may file a civil lawsuit stemming from the same incident, in which the defendant is charged with the tort of battery. In such a case, damages are typically compensatory (a monetary award), along with special relief such as injunctive or punitive. Substantial harm is not required, but nonetheless, there must be palpable harm. Compensatory damages may be for either/both economic and non-economic (emotional) harm. In the case of the necklace (above), the plaintiff may ask for monetary damages to cover property (the broken necklace); physical harm to her neck (economic damages for medical bills, if any, and non-economic damages for pain and suffering, if any); and emotional harm caused from the incident (the apprehension of a battery; the embarrassment when it actually occurred, etc.). In the case of transferred intent involving an assault and battery, there will likely be two plaintiffs: the person who was the intended victim of the battery (who sues for assault) and the person who was actually physically harmed (who sues for battery).
In medical malpractice cases involving unauthorized treatments or lack of informed consent (see below), the patient may sue for all costs and treatments/procedures associated with the treatment received. This is true, in many cases, even where the patient ultimately benefited from the unauthorized treatment (although this may be argued as a mitigating factor by defense).
Virtually all states have recognized, either by express statute or common law, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care. If the patient has received this information, any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense, including a battery, for the unauthorized touching of the plaintiff's person.
Toxic torts (toxic exposure cases) typically involve claims of negligence or strict liability. However, in recent years, cognizable claims for toxic battery have succeeded in many courts. Again, the intent necessary to constitute a tortious battery need not be an intent to cause harm, but rather, the intent to do the act which ultimately causes the harm. Companies that manufacture chemicals that are known to be volatile or known to ultimately result in human contact are vulnerable to such claims. They may be sued for illegal disposal of toxic/hazardous materials as well as toxic battery if persons are harmed by leached chemicals or fumes in the air, ground, or water. The intent was not to harm others, but to dump the material in an illegal manner or location. This is a good example of gross negligence or recklessness so egregious as to constitute the requisite intent to commit battery under law.
Cases of toxic batteries began appearing in the late 1900s. In the early case of Gulden v. Crown Zellerbach Corp. (9th Circuit, 1989), the court held that exposing workers to PCBs (known carcinogens and harmful agents) at 500 times the maximum exposure allowed under EPA standards could constitute a battery. Toxic battery also became an element in many of the tobacco and breast implant cases. Obviously, such cases often involve multiple plaintiffs and multiple defendants, and may become class action suits in the case of widespread exposure to harm.
Most sports injuries, which are common in competitive, contact sports, are accidental. However, viable causes of action have been found in cases where sports players used excessive force in their tactics, to the detriment or harm of other players. Of course, the infamous fights among hockey players have resulted in numerous multi-party claims for battery.
Of all torts and crimes involving domestic relations, the most recurring ones involve charges of battery. This is true not only in spousal relations, but also in child abuse cases. Sexual offenses against other persons (including children) are both specific crimes as well as batteries. Unfortunately, spousal batteries often escalate into situations involving serious physical harm and property damage. Some
Viable defenses to both tortious and criminal battery are similar. A defendant may raise lack of intent, especially in criminal battery, and in those circumstances tending to show accidental behavior. Another commonly-invoked defense, especially where a battery results in physical injury, is self-defense or the defense of others or property. These are the only true defenses, and other issues raised (lack of harm or injury, provocation, etc.) are merely mitigating factors. A defense of contributory negligence cannot be raised in a claim for intentional tort.
Diamond, John L., et al. Understanding Torts. 2000.
Prosser. W. Prosser and Keeton on Torts. 5th ed., 1984. Sections 13-18.
Weaver, Russell L., John H. Bauman, et al. Torts: Cases, Problems, and Exercises. 2003.
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