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Distinguishing Between Assault and Battery in Nevada

Distinguishing Between Assault and Battery in Nevada
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

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 crime. 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.

Battery

NRS 200.481 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.

Nevada Civil Lawsuits Arising from Hate Crimes

Nevada Civil Lawsuits Arising from Hate Crimes
Victims of violent crime are entitled to seek damages from their attackers in civil court. The American legal system imposes high standards for a criminal conviction, making the conviction itself a powerful tool for establishing civil liability. Hate crimes are no different.

What is a hate crime?

The term “hate crime” can be somewhat misleading. Nevada’s criminal code doesn’t provide a distinct group of crimes that fall under the umbrella of hate crime. Rather, the term is used when prosecutors can prove that the defendant’s motivation for committing violent criminal acts was based on animosity toward one or more protected features of the victim. When proven, this ulterior motive can enhance the punishment a criminal receives. Under NRS 193.1675, a hate crime is a violent crime already punishable as a felony (that is, by a prison term of at least one year) committed because of the victim’s actual or perceived race, color, religion, national origin, physical or mental disability, sexual orientation, or gender identity or expression. The perpetrator of the crime cannot share the protected trait of the victim—for example, a person of the same race as the victim cannot be prosecuted for a racially motivated hate crime against another person of the same race, unless the perpetrator perceived the victim as being of a different race and attacked them on that basis. Crimes falling within the scope of NRS 193.1675 are punished with extra prison time, from one to twenty years on top of the sentence for the underlying crime, depending on the facts of the case. Federal law provides similar scope and penalties as found in state law. Sources include the Civil Rights Act of 1968, 18 U.S.C. § 249, the Violent Crime Control and Law Enforcement Act of 1994, 28 U.S.C. § 994, and the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249.

The relationship between a criminal and civil case

A criminal court will sometimes order a convicted defendant to pay the victim restitution as part of sentencing. Restitution may be granted for easily quantified damages, like medical expenses, lost wages, and property damage. But restitution does not cover pain and suffering, emotional distress, and similar damages that are hard to reduce to a monetary figure. For these damages the victim of a hate crime may wish to pursue a civil lawsuit. If the perpetrator of a violent act was convicted of a crime, the conviction becomes an important piece of evidence in a civil trial. Under NRS 41.133, the conviction of a crime is conclusive evidence of the facts necessary to establish the defendant’s civil liability for the plaintiff’s injuries. This simplifies the civil trial process for victims where the criminal defendant has already been convicted. But note that a criminal conviction is not necessary to pursue a civil lawsuit. In many cases of allegedly criminal behavior the perpetrator doesn’t get convicted of a crime, but is still held liable for civil damages. So even if prosecutors fail to get a conviction in court, pursuing a civil case can be worthwhile. Victims of hate crimes in Nevada may find this booklet by the National Crime Victim Bar Association helpful.

GGRM helps victims recover what they deserve

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area recover awards for personal injury. If you have been victimized by a hate crime and have questions about your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.