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Assault and Battery Laws: Facts and Misconceptions


If you have ever watched a crime TV show or movie, you’ve probably heard of “assault and battery.” Hollywood seems to use these two words as a single concept broadly referring to situations that involve being physically attacked. But, in fact, “assault” and “battery” are two conceptually related, but technically distinct offenses.

What Is Assault and Battery?

Assault. Assault is a crime the United States inherited from England’s common law courts. The common law elements of assault originally involved:

  • “The apparent, present ability to carry out;
  • An unlawful attempt
  • To commit a violent injury;
  • Upon another.”

Thus, England and U.S. courts traditionally viewed assault as an attempted battery. Modernly, states including Nevada, codified the crime of assault into their criminal statutes. The Nevada penal code defines assault as:

  1. “Unlawfully attempting to use physical force against another person; or
  2. Intentionally placing another person in reasonable apprehension of immediate bodily harm.”

Battery. The crime of battery is also the product of British common law. The original common law elements of battery include:

  1. “An unlawful application of force;
  2. To the person of another;
  3. Resulting in either bodily injury or an offensive touching.”

The Nevada penal code defines battery as:

  • “Any willful and unlawful use of force or violence upon the person of another.”

Legal Concepts That Link Assault and Battery

To understand where the misconceptions regarding assault and battery come from, it’s important to understand some key concepts.

Attempted offenses. An attempted offense is one where the wrongful act was not successfully completed. One of the statutory definitions of assault includes an “attempted battery.” Therefore, physical harm or actual contact aren’t required to be convicted of an assault.

But a successful conviction for an attempted battery must go beyond merely planning to hurt someone. Because criminal law seeks to punish wrongful or harmful acts, an offender must have performed a substantial step toward completing the underlying offense.

Lesser included offenses. Sometimes all the elements of an offense are incorporated into the definition of a more serious offense. Thus, if someone committed the more serious crime, they’ve implicitly satisfied the elements of the lesser offense included within the greater offense.

For example, assault is considered to be a lesser included offense of battery – assault is the same as battery minus the physical contact. Furthermore, if someone attempted to murder another person who ultimately survived, they could be convicted with either attempted murder, or assault and battery.

However, an offender who committed the more serious crime cannot be punished for that crime and any lesser included offenses. Instead, lesser included offenses are considered to be merged with the greater offense.

For example, someone who successfully murdered another person is not also convicted of assault and battery on top of murder. The lesser included offenses of assault and battery are merged into the greater offense.

Common Misconceptions About Assault and Battery

Is assault the same as battery? No. Ultimately, assault is an offense that doesn’t require physical harm or contact. The “wrong” this crime is concerned with involves either an attempt to hurt someone, or threatening to hurt someone. Therefore, if someone tries to punch you and they miss, they can still be convicted for assault.

Is sexual assault the same as assault? Not quite. The Nevada penal code gives “sexual assault” its own definition. Unlike assault, sexual assault involves forcing another person to physically touch, or be touched with, the offender’s genitals or vice versa. Because this involves physical contact, sexual assault is more in line with battery.

Does battery require physical violence? No. On the one hand, misdemeanor battery can occur through non-consensual offensive contact. For example, a doctor who performs a life-saving medical procedure on a patient with an advanced directive against life-saving measures is liable for battery if the doctor performed such measures without other legal justification.

On the other hand, aggravated battery involves circumstances that make the resulting contact or touching particularly harmful. This can elevate the crime from a misdemeanor to a felony. Aggravated battery normally involves:

  • A battery resulting in serious bodily injury;
  • A battery using a deadly weapon; and
  • A battery constituting domestic violence against a child, woman, elder, or police officer.

Criminal Defense Advocacy with Integrity and Excellence

Many people instinctively try to explain themselves when confronted with criminal charges. But remember, anything you say to law enforcement can and will be used against you in a court of law. The U.S. Constitution guarantees your right to remain silent and your right to an attorney.

If you’re faced with criminal charges, exercise your constitutional rights and call a Las Vegas criminal defense attorney from The Draskovich Law Group, Chtd. Our firm has decades of trial experience defending a broad range of charges in both state and federal courts.

Contact The Draskovich Law Group, Chtd online, or call (702) 381-6590 to schedule your free initial consultation with one of our Las Vegas criminal defense attorneys today.