In popular vernacular the distinction between assault and battery often gets lost. What many people describe as assault is actually a form of battery in many situations. Quite often the two concepts are paired together because an assault often precedes a battery, but they are separate causes of action. In fact, they are criminal
causes of action, but they can each also be grounds for a civil lawsuit.
Assault, as defined in NRS 200.471
, involves “unlawfully attempting to use physical force against another person, or intentionally placing another person in reasonable apprehension of immediate bodily harm.” Note the two separate forms of assault: attempting to hurt someone, and making someone afraid that they are about to be hurt. In either case, intent is a critical component. The defendant must have intended to hurt the victim but for whatever reason was prevented from doing so (the “attempt” side of the coin) or the defendant must have intended that the victim be afraid.
A key component of “causing fear” assault is that it depends on the subjective interpretation of the victim, not the actual intent of the perpetrator. For example, a defendant who assumes a threatening posture and says, “Get out of my way or I’ll knock you over,” may be committing assault even if there’s no intent to actually knock the person down. Rather, if the victim reasonably believes that he or she is in imminent danger, that is enough to support an assault claim.
Another key component of assault is that the victim must be aware of what’s happening for assault to occur. If in the prior example the person being threatened had his or her back turned and didn’t hear the defendant’s threat, there likely wasn’t an assault. The same would be true if the target of the alleged assault was asleep. In that sense, assault is very much an emotional
One reason that assault is often confused with battery is that some causes of action, especially in the criminal realm, use the term “assault” where “battery” would typically be used in a civil context. For example, the crime of sexual assault involves a physical violation of a victim’s body. In a civil context the victim might sue the perpetrator for sexual battery
defines battery as “any willful and unlawful use of force or violence upon the person of another.” Like assault, the defendant’s intent is critically important. If the defendant wasn’t paying attention and accidentally knocked into the plaintiff, the plaintiff probably couldn’t argue that the defendant had committed battery. But if the defendant in the example above had followed through and actually knocked down the victim of the preceding assault, then battery might properly be said of have occurred.
Unlike assault battery can take place whether the victim is aware of it or not. Battery can be committed against someone who is unconscious, asleep, or just distracted. A classic example of battery without assault is the sucker punch: the perpetrator sneaks up on the unsuspecting victim and hits them in the face with the intent of knocking them to the ground.
Remedies for assault and battery
As mentioned earlier, assault and battery are criminal offenses, punishable by fines and jail time that vary by the seriousness of the offense. Crimes are prosecuted by state or local prosecutors, not private law firms. However, a criminal case doesn’t necessarily address the kind of harms a victim of assault and/or battery can endure. That is why a personal injury lawsuit
against the perpetrator may also be appropriate.
One reason the victim of an assault or battery may want to pursue a civil case is if he or she has suffered substantial damages that have not been compensated for by the criminal process. A criminal trial can award a victim reimbursement for medical expenses and other “economic” damages, but cannot compensate for noneconomic damages like pain, suffering, or emotional distress. Civil cases also require a lower standard of proof, which can be important for causes of action like this, where the defendant’s intent must be proven. Even if the criminal case can’t prove beyond a reasonable doubt that the defendant intended to hurt the victim, in the civil trial the plaintiff need only prove intent by a preponderance of the evidence.
GGRM is a Las Vegas personal injury law firm
The law firm of Greenman Goldberg Raby Martinez represents injured clients in the Las Vegas area. If you have suffered an assault or battery, please call us today for a free, confidential attorney consultation at 702-388-4476 or ask us to reach out to you through our contact page