Assault
and Battery Defense
Section 13A of chapter 265 of the Massachusetts General Laws
provides that “Whoever commits . . . an assault and battery upon another shall
be punished . . . .” An assault and
battery is the intentional and unjustified touching of the person of
another. When a defendant punches
another he commits the crime of Assault and Battery. The crime of Assault and Battery is a
misdemeanor and punishable by imprisonment for not more than 2 ½ years in a
house of correction or by fine of not more than $1000.
Assault
An assault is an
intentional act by one person that creates an apprehension in another of an
imminent harmful or offensive contact. An assault may be committed in either of two ways. It is either
an attempted battery or an immediately threatened battery. An attempted battery is when a person throws
a punch at another but misses. An
immediately threatened battery is when a person places another in fear of an
imminent threatened battery by engaging in objectively menacing conduct.
Battery
Battery is a criminal offense involving unlawful physical
contact, distinct from assault which is the apprehension of such contact. Every battery includes an assault as a lesser
included offense. Battery requires
intentional conduct but does not require the victim to be injured or require
that there be intent to harm. For
example, if a defendant kisses another person who doesn’t want to be kissed
then the defendant commits the crime of Assault and Battery.
Elements
of the Crime
In order to prove a
defendant guilty of Assault and Battery, the prosecutor must prove three
elements beyond a reasonable doubt:
First: That the
defendant touched the person of another without having any right or excuse for
doing so;
Second: That
the defendant intended to touch the person of another; and
Third: That the
touching was either likely to cause bodily harm to the person of another
or was done without his (her) consent.
Poking someone with a finger, however slight and regardless of whether
a mark is left or the person is injured is an Assault and Battery. Accidental
or unintended contact is generally not considered a crime.
Reckless Conduct
There is a second way in which a person may be guilty of an
assault and battery. Instead of intentional conduct, it involves reckless
conduct that results in bodily injury. A
defendant is guilty of assault and battery if he engages in actions which
caused bodily injury to another that result in a sufficiently serious injury. The defendant’s actions have to amount to
reckless conduct and not just negligent conduct. For example, it is reckless to through a rock
into a crowd of people without intending to strike anyone but if someone is hit
and injured then that person may be guilty of Assault and Battery by way of
reckless conduct.
Self-Defense
Defenses
to a charge of Assault and Battery vary greatly and depend on the circumstances
of each case. Self-defense is the most
commonly raised defense to the charge of an intentional Assault and Battery. The
defense of self-defense exists, for example, if a defendant alleges he struck
another person to prevent harm to himself in circumstances where he could not
retreat from the other person and had to use reasonable force to defend himself
from the other person’s attack. In other
words the defendant is saying that the Assault and Battery was justified. When self-defense is raised, the prosecutor
has the burden of proving beyond a reasonable doubt that the defendant did not
act in self-defense. If there is reasonable doubt after a trial as to whether
a defendant acted in self-defense, then the prosecutor has not met his burden
and the defendant will be found not guilty.
The
defense of self-defense can also be used in defense of others as well as
defense of property.
Retaliation
A person cannot lawfully act in self-defense when one uses force in
retaliation. For example, if a person is assaulted and struck, and hits the
other person to get even, he then becomes the aggressor and has what is known
as an imperfect right of self-defense and commits an Assault and Battery in
retaliation. The right to self-defense
arises from necessity and ends when the necessity ends.
Next
Step
Having a criminal defense
attorney with extensive experience in assault and battery cases can make the
difference between winning and losing. Steven
J. Topazio is a Boston Criminal Attorney and rated one of Boston’s Best. For help visit Attorney Topazio at http://www.topaziolaw.com/criminal-practice-areas/assault-and-battery or email him at stopazio@topaziolaw.com for a free consultation.
Suite 4100 10 Winthrop Square
Boston, MA 02110
(617) 422-5803
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