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Differences Between Assault and Battery

AssaultThe words assault and battery are often used together. But they refer to two different things. Usually, an assault is immediately followed by a battery, but that is not always the case. In California, criminal law prohibits both assault and battery, and civil law also provides for penalties.


Assault violates an individual's right to have peace of mind and to live without others causing fear of personal harm. California law provides for two ways to commit assault. First, a defendant will be liable for assault if:

  • The defendant attempted to make harmful or offensive conduct with another’s person; and
  • The plaintiff reasonably believed that he or she was about to be touched in a harmful or offensive manner.

However, the present ability to harm is not mandatory for an assault to be committed. If a person is put in fear of injury, the defendant is not required to have actually intended an injury. Thus, a defendant may also be liable for assault if:

  • The defendant threatened to touch the plaintiff in a harmful or offensive way;
  • It reasonably appeared to the plaintiff that the defendant was about to carry out the threat;
  • The plaintiff did not consent to the defendant’s actions;
  • The plaintiff was harmed; and
  • The defendant’s conduct was a substantial factor in causing the harm.

In a 1944 case, a man pointed an unloaded gun at another man. The court ruled that that fear of being shot was enough to cause an actionable injury, unless the victim knew that the gun was not loaded.


Unlike assault, battery requires harmful or offensive physical contact with the victim. To show that a person committed a civil battery, the injured person show that:

  • The defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend;
  • The plaintiff did not consent;
  • The plaintiff was harmed or offended; and
  • A reasonable person would have been harmed or offended.

Battery requires that the defendant have intended the harmful touching. If the defendant accidentally bumps into someone, and the victim falls and is injured, it is not battery (though the victim may have a negligence claim). However, if the defendant intends only assault, but accidentally touches the victim, the intent to assault is sufficient to satisfy the intent requirement for battery as well.

Assault and Battery Together

Since assault is causing an immediate apprehension of injury, and battery is a harmful or offensive touching, they often happen together. However, it is possible to assault someone without making the contact required for battery, and it is possible to batter someone without the victim being aware of the imminent battery, which is a requirement for assault.

Injuries sustained as a result of assault or battery can be serious, but receiving compensation for those injuries can help. If you believe you have a civil assault or battery claim, please contact the dedicated San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for a free initial consultation at (408) 289-1417.
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