Assault vs. Battery: The Difference in Tort and Criminal Law

Assault is an act intended to cause a harmful or offensive contact, or the expectation of one, that makes the other person expect an imminent contact. Battery is the harmful or offensive contact itself. A raised fist is an assault; the punch that lands is a battery. You can have either one without the other, which is why the law treats them as separate wrongs.

The words mean slightly different things depending on whether you are talking about a lawsuit for money (tort law) or a prosecution (criminal law), and the criminal definitions change from state to state. This guide covers both, with the cases your torts course will use.

Assault vs. battery at a glance

	Assault	Battery
Core idea	The expectation of being touched	The touching
Contact required?	No	Yes, directly or indirectly
Victim must be aware?	Yes, they must apprehend the contact	No. A sleeping person can be battered
Intent	To cause a harmful or offensive contact, or the apprehension of one	The same intent; the difference is the result
Restatement (Second) of Torts	§ 21	§ 13 (harmful contact) and § 18 (offensive contact)
Example	Swinging a bat at someone who sees it coming and ducks	Spitting on someone, or shoving them

Battery in tort law

Under Restatement (Second) of Torts § 13, a person is liable for battery if "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." Section 18 states the same rule where the contact is offensive rather than harmful.

Three points trip students up.

1. Intent means intent to cause a harmful or offensive contact, not intent to injure

In Garratt v. Dailey (Wash. 1955), five-year-old Brian Dailey moved a lawn chair a few feet and sat in it. An adult woman then tried to sit where the chair had been, fell and broke her hip. The trial court found he did not intend to hurt her. The Washington Supreme Court held that did not settle the case: a battery "would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been." Intent covers both purpose and substantial certainty. The court sent the case back for a finding on that question. (States split on one further point: some require only intent to make the contact, others intent that it be harmful or offensive.)

2. "Contact" includes things attached to the body

In Fisher v. Carrousel Motor Hotel, Inc. (Tex. 1967), a hotel club manager snatched a plate from Fisher's hands at a buffet lunch and shouted that Fisher, who was Black, could not be served there. Fisher was never touched. The Texas Supreme Court held that "the intentional snatching of an object from one's hand is as clearly an offensive invasion of his person as would be an actual contact with the body," and reinstated the jury's award, including damages for humiliation.

3. The defendant takes the victim as they find them

In Vosburg v. Putney (Wis. 1891), one schoolboy kicked another on the shin in class after the teacher had called the room to order. The injured boy already had a wound near the same knee, and the jury found the kick caused a serious inflammation of the bone. The Wisconsin Supreme Court held the kick was unlawful because it happened during class, not on the playground, where an "implied license" for rough play might apply. It also restated the rule that a wrongdoer "is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him." (The court still ordered a new trial, because the expert testimony on causation had been handled in error.)

Assault in tort law

Restatement (Second) of Torts § 21: an actor is liable for assault if "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension."

• Apprehension is not fear. It means expecting the contact. A boxer who sees a punch coming apprehends it without being afraid.
• Imminent means about to happen. "I'll get you next week" is a threat, not an assault in tort.
• Words alone are usually not enough. There normally has to be an act, such as a gesture, a step forward or a raised weapon, that makes the contact seem imminent.
• The classic case is I de S et Ux v. W de S (1348), where a man struck at a tavern keeper's wife with a hatchet and missed. There was no contact, but the court held there was still a harm for which damages could be recovered.

Worked examples

Example 1: the thrown phone

During an argument, Kevin throws his phone at Jordan. Jordan sees it coming and ducks, and the phone hits the wall.

• Assault: yes. Kevin acted intending a harmful contact, and Jordan saw the phone coming and expected to be hit.
• Battery: no. There was no contact.

Change one fact: Jordan is looking the other way and the phone hits him in the back. Now there is a battery but no assault, because Jordan never saw it coming.

Example 2: the transferred intent

Priyanka swings at Sam, who steps aside, and her fist hits Lee, who was standing behind him. Priyanka never meant to touch Lee. Under the doctrine of transferred intent, and the words "or a third person" in § 13, her intent to hit Sam carries over to Lee. Lee has a battery claim against her, and Sam has an assault claim.

Example 3: the unwanted kiss

At an office party, a manager kisses an employee on the cheek without warning. There is no injury. That is likely a battery: an unwanted kiss from a manager would usually offend a reasonable sense of personal dignity, though whether it does is a question of fact, and some states also require proof that he intended the contact to be offensive. If it is a battery, the employee may recover damages even without physical harm, as Fisher recovered for humiliation.

Assault and battery in criminal law

Criminal law uses the same words, but each state writes its own definitions, and they do not all match the tort rules.

• Some states keep two separate crimes. California Penal Code § 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another," and § 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." California's criminal assault is traditionally described as an attempted battery, so it does not depend on the victim seeing it coming.
• Others, following the Model Penal Code, use a single offense called "assault." The Model Penal Code § 211.1 "effects a consolidation of the common law crimes of mayhem, battery, and assault." It makes a person guilty of simple assault if they attempt to cause or purposely, knowingly or recklessly cause bodily injury; negligently cause bodily injury with a deadly weapon; or attempt by physical menace to put another in fear of imminent serious bodily injury. Note that a merely offensive touching is not simple assault under the Model Penal Code.
• "Aggravated" versions add factors such as a deadly weapon, serious injury, or a protected victim (a police officer, a child), and carry heavier penalties. These differ widely by state.

So "assault" on a criminal charge may describe what tort law would call a battery. Always check the statute of the state in question.

How it shows up on the exam

• Analyze both torts separately. One swing can produce an assault on the person who saw it and a battery on the person it hit.
• Intent is the usual battleground. Use Garratt's "substantial certainty" test for defendants who say they did not mean any harm.
• Awareness. No apprehension, no assault. But a battery needs no awareness at the time.
• Imminence and words. Future threats and words alone usually fail.
• Offensive contact. Spitting, unwanted touching and grabbing an object held in the hand all count (Fisher).
• Damages. Mention the eggshell rule (Vosburg) when a small contact causes large harm.
• Defenses. Consent (including implied consent in sports and play, as Vosburg discusses), self-defense and defense of others.

A short IRAC outline

• Issue: Is the defendant liable for assault, battery, or both?
• Rule: Battery: intent to cause harmful or offensive contact (or apprehension of it), and resulting contact (Restatement §§ 13, 18). Assault: the same intent, and resulting imminent apprehension (§ 21).
• Application: Intent (purpose or substantial certainty), contact or apprehension, imminence, any transferred intent, defenses.
• Conclusion: Liability on each claim, and the likely damages.

If this happened to you

If someone threatened or attacked you, two separate legal tracks may be open, and they work independently.

• The criminal case. You report it to the police, and a prosecutor decides whether to bring charges. You are a witness, not a party. The aim is punishment, though courts can order restitution.
• The civil case. You sue the person for money damages for your injuries, medical bills, lost income, and in some cases humiliation. A civil case can proceed even if no criminal charges are filed, and it uses a lower standard of proof.
• Deadlines apply. Every state sets a statute of limitations for injury claims, and the deadline for intentional torts can be short. Do not wait to find out.
• Collecting damages. Insurance policies can exclude intentional acts. In West Virginia Fire & Casualty Co. v. Stanley (W. Va. 2004), the court held the policy's intentional-acts exclusion barred coverage for the assault claims. A judgment is only as good as the defendant's ability to pay, so ask a lawyer about this early.
• Your safety comes first. If you are in danger, call 911. Every state lets courts issue protective orders in at least some situations, such as domestic violence or stalking; who qualifies varies by state.
• This is general information, not legal advice. A lawyer licensed in your state can tell you what applies to you. Your state or local bar association can usually refer you to a lawyer.

How England and India treat it

England draws the line the same way. In Collins v Wilcock [1984] 1 WLR 1172, Robert Goff LJ said: "An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person."

India uses different words. The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code, defines "force" (§ 128) and "criminal force" (§ 129), which together cover what common-law systems call battery. Section 130 defines assault as a gesture or preparation made intending, or knowing it to be likely, that it will cause a person present to apprehend that criminal force is about to be used against them, and adds that "mere words do not amount to an assault." Section 131 sets the punishment for assault or criminal force without grave provocation. See our guide to the Bharatiya Nyaya Sanhita.

Related reading

• Difference between civil law and criminal law
• Essential elements of tort
• Res ipsa loquitur

Sources

• Restatement (Second) of Torts §§ 13 and 21, text as quoted in West Virginia Fire & Casualty Co. v. Stanley, 216 W. Va. 40, 602 S.E.2d 483 (2004)
• Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955)
• Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)
• Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891)
• I de S et Ux v. W de S, Y.B. Lib. Ass. f. 99, pl. 60 (1348)
• California Penal Code § 240 and § 242
• Model Penal Code § 211.1, text and explanatory note as quoted in Lamb v. State, 93 Md. App. 422, 613 A.2d 402 (1992)
• Collins v Wilcock [1984] 1 WLR 1172 (QBD)
• Bharatiya Nyaya Sanhita, 2023, §§ 128 to 131