Assault and battery comes in two forms. The first type is intentional assault and battery, defined as intentional and unjustified use of force against another.  The second type, reckless assault and battery is defined as a reckless act that caused injury to another. With that, as our Massachusetts criminal defense lawyer details, we can already see the importance of having an experienced assault and battery by your side.    

Type 1: Intentional Assault and Battery man with fist balled up to attack woman

The first type of assault and battery is an intentional act of unjustified contact.  

To be found guilty of this form of assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant:

1. Intentionally touched another person (however slight);

2. Without having any right or excuse; and

3. That the touching was either likely to cause bodily harm or was offensive and done without the victim’s consent.

This type of assault and battery is the most common type of assault and battery charge in Massachusetts.  Even a very slight touching (like throwing a tissue or a piece of paper) at someone becomes an assault and battery if the victim did not consent to the touching.  If the victim consented to the touching, it could become an assault and battery if the touching is physically harmful.

A very common assault and battery charge involves hitting or pushing. The law makes it an assault and battery to “touch” someone with bodily fluids, such as spit or urine.

Type 2: Reckless Assault and Battery

The second type of assault and battery is not as common as intentional assault and battery. Instead of intentional conduct, this type of assault and battery involves reckless conduct that results in bodily injury.  

To prove this type of assault and battery, the Commonwealth must prove, beyond a reasonable doubt, that the defendant: 

1. Intentionally engaged in reckless conduct;

2. That caused bodily injury.

Under this type of assault and battery, the injury need not be permanent, but it must be more than trivial.  For example, an act that only shakes up a person or caused only momentary discomfort would not be sufficient. It is not enough that the Commonwealth proves that the defendant acted negligently.  Rather, the Commonwealth must prove that the defendant’s action went beyond mere negligence and amounted to recklessness. The defendant acted recklessly if they knew, or should have known, that their actions were very likely to cause substantial harm to someone, but they ran that risk and went ahead anyway.

Transferred Intent Applies to Assault and Battery

If a defendant, for example, throws a punch intending to hit person A, and accidentally hits and injures person B instead, the defendant may be responsible for an assault and battery on person B, even though he intended to hit person A.  This principle also applies when a defendant harms both the intended victim and one or more unintended victims.

Can I be arrested for assault and battery?

Yes, but only if there is a breach of the peace in the presence of the police. Otherwise, the police must file a complaint.  Because assault by dangerous weapon is a felony, officers may conduct a warrantless arrest if there is probable cause to determine that a crime has been committed.  

How does an assault figure into the picture?

Every assault and battery includes an assault as a lesser included offense.  So, if the evidence would also permit a jury finding of simple assault, the jury will be read instructions by the judge on the lesser included offense (simple assault).

What are the penalties for assault and battery?

Assault and battery is a misdemeanor and the maximum penalty is a sentence of 2.5 years in the House of Correction or a fine of not more than $1,000.00.

Nate Amendola
Massachusetts criminal defense attorney, helping resolve OUI, domestic violence, drug and criminal charges