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Assault Basics

Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

Assault vs. Battery

Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position atop the hill.” Violence, or at least some sort of physical contact, is generally implied in the term.

However, while state laws sometimes differ, assault generally doesn't require that physical contact actuallly occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another.

Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact: “battery.” You may have heard the term “assault and battery.” This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.

History of Assault

This definition of assault developed at common law. What this means is that courts developed a working definition over the course of centuries, long before it a legislature passed a statute defining civil assault. Modern assault statutes closely reflect this ancient common-law definition. An assault is both a crime and a tort. Therefore, an assailant may face both criminal and civil liability. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.

Civil Assault Cases

Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate.

Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer. Punitive damages go above and beyond compensatory damages.

Next Steps
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