Keith Mack
Assault is a criminal act that involves causing physical harm or attempting to cause physical harm to another person. It can be committed with or without a weapon and can range from physical violence to threats of violence. Depending on the jurisdiction, assault may be classified as a common law crime or a statutory crime. Common law, in this context, refers to the legal tradition inherited from English law, which recognises two offences: common assault and battery. Common assault involves intentionally or recklessly causing another person to experience immediate and unlawful violence or the threat thereof. Battery, on the other hand, refers to the actual bodily contact or infliction of unlawful force. In some jurisdictions, the two offences have been combined into a single crime called assault and battery, which has led to a broader definition of assault that encompasses what was traditionally considered battery.
| Characteristics | Values |
|---|---|
| Definition | The act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. |
| Types | Common assault, aggravated assault, assault with intent to cause grievous bodily harm, indecent assault, racially or religiously aggravated common assault, common law assault, etc. |
| Punishment | Fine, imprisonment, or death, depending on the severity of the offense. |
| Jurisdiction | Common law legal systems, civil law, Scots law, South African law, English law, United States law, etc. |
| Defenses | Self-defense, lack of intent, no immediate danger, etc. |
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What You'll Learn
Common assault vs common law assault
Assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. It can be committed with or without a weapon and can range from physical violence to threats of violence.
Common Assault
Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It is punishable with imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
Common Law Assault
Common Law Assault is committed by a person who makes unlawful contact with another person or threatens to do so. The maximum penalty for Assault under common law is five years of imprisonment.
The main difference between common assault and common law assault is the severity of the offence. Common assault is an aggravated form of assault, while common law assault is a less serious offence. Common assault is usually dealt with summarily in the Magistrates' Court, while common law assault may be heard in either the Magistrates' Court or the Crown Court depending on the severity of the offence.
In some jurisdictions, the two offences have been combined into a single crime called "assault and battery". This has resulted in the definition of assault in these jurisdictions becoming more aligned with the traditional definition of battery.
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Corporal punishment as assault
In the United States, England, Northern Ireland, Australia, and Canada, corporal punishment administered to children by their parent or legal guardian is not legally considered assault unless deemed excessive or unreasonable. However, the Child Abuse Prevention Center does not promote corporal punishment, advocating for positive discipline strategies instead.
Corporal punishment is defined as "hitting a child with an open hand on the buttocks or extremities with the intent to discipline without leaving a bruise or causing physical harm". It is considered child abuse when it causes internal or external injuries, or when objects such as a belt or spoon are used, resulting in marks lasting more than two hours. Corporal punishment may also damage a child's cognitive development and impair their ability to perceive the intentions of others, leading to trust issues and difficulties in social interactions.
The line between reasonable corporal punishment and abuse is often blurry. While some states in the US provide parents with an exception to assault laws when there is a disciplinary motive, the degree of harm caused or risked is a key factor in determining whether corporal punishment constitutes abuse. Unreasonable physical punishment may be charged as assault or under separate statutes for child abuse.
In English law, common assault is committed when one person causes another to apprehend or fear the immediate use of unlawful violence, which can include physical contact or the threat thereof. The term "assault" often encompasses the separate offence of battery, which refers to the actual infliction of unlawful force. While battery requires bodily contact, assault can be committed without physical touch, such as through the use of threatening gestures or language that instill fear in the victim.
In conclusion, corporal punishment can be considered assault when it crosses the line into child abuse or when it involves unreasonable or excessive force that causes physical harm or the threat thereof. The legal definition of assault varies slightly across jurisdictions, but it generally involves intentionally or recklessly causing another person to fear immediate and unlawful violence.
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Assault and battery
In English law, there are two offences of assault: common assault and battery. Common assault is committed when one person intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. This means that the victim fears or apprehends the use of force that could cause personal contact and possible injury. The violence or touching does not have to be hostile, and it can include acts such as a handshake or a friendly pat on the back. However, if the defendant is aware of the victim's fears and carries out the act to exploit the condition and embarrass the victim, it may be considered assault.
Battery, on the other hand, is the actual infliction of unlawful force or physical contact on another person. It is a specific common law offence that involves unlawful or unwanted touching of another person. Battery generally does not require specific intent to harm the victim, but such intent is often present in battery cases. It is typically classified as either simple or aggravated battery, with aggravated battery considered a more serious offence.
In some jurisdictions, the two offences have been combined into a single crime called "assault and battery". This has resulted in the definition of assault in these jurisdictions becoming more aligned with the traditional definition of battery. Some jurisdictions have also moved away from the term "battery" and now only prosecute varying degrees of assault.
In terms of penalties, common assault and battery are summary offences in England and Wales, punishable by a fine, imprisonment for up to six months, or both. However, if the offence is committed against an emergency worker, the maximum imprisonment term is 12 months.
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Statutory assault in South Africa
In South Africa, assault is not a statutory crime but a common-law crime. It is defined as "unlawfully and intentionally applying force to the person of another, or inspiring a belief that that force is immediately to be applied to him". This definition encompasses both the act of assault and the threat or attempt to cause battery, which is the deliberate use of physical force against another person.
South African law does not distinguish between assault and battery. Common assault, or simple assault, is defined as an intentional act of physical violence or the threat of physical violence against another person. It can be committed with or without a weapon and can take many forms, including physical contact, threats, gestures, verbal abuse, intimidation, and even emotional distress. Any action that makes another person fear for their safety or puts them in harm's way can be considered assault.
Assault is a serious criminal offence in South Africa and is one of the most commonly reported crimes in the country. It is classified as a misdemeanour offence and is punishable by law. The penalty for common assault in South Africa can include imprisonment for a term not exceeding six months, a fine, or both. Victims of assault can also claim compensation from the perpetrator by initiating a civil lawsuit.
It is important to note that aggravated assault, which involves using a weapon or intending to cause serious bodily harm, is a more serious offence than simple assault. Additionally, sexual assault, formerly known as indecent assault, is now clearly defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.
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Defences against assault charges
Self-Defence
Self-defence is one of the most commonly used defences against assault charges. It allows individuals to use reasonable force to protect themselves or others from imminent harm or danger. The key to a successful self-defence claim is demonstrating that the belief in the necessity of self-defence was genuine and not based on a mistaken perception of danger.
Lack of Intent
Intent is a critical element in assault cases. If the defendant can demonstrate that they did not intend to cause fear or harm and that their actions were accidental, they may be able to avoid or reduce criminal charges.
De Minimis Defence
This defence argues that the contact or harm caused was too minor to constitute assault under the law.
Intoxication
In some cases, the defendant may argue that they were too impaired due to intoxication to form the necessary intent for assault.
Duress
Duress is a defence that argues the defendant was forced to commit the assault under the threat of harm from another party.
Mental Health Issues
Mental health issues are often considered in the defence and sentencing of assault charges.
It is important to note that each case is unique, and the effectiveness of these defences can vary. Consulting with a criminal defence attorney is crucial to assess the strength of potential defences and navigate the legal process.
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Frequently asked questions
Assault is the act of causing physical harm or unwanted physical contact to another person, or threatening to do so.
Common law assault is a common law offence, meaning there is no specific legislation for the offence. It involves making unlawful contact with another person, or threatening to do so.
Statutory assault, or criminal assault, is any act by which a person intentionally or recklessly causes another person to experience or apprehend immediate and unlawful violence.
The punishment for assault depends on the severity of the offence and the jurisdiction in which it is prosecuted. In some cases, assault may result in a fine, imprisonment, or even death.
