Assault and battery are frequently tested intentional torts on the bar exam. Many questions turn on distinguishing between the two and identifying whether the required elements are satisfied.
Assault and battery are core intentional torts and are best understood within the broader framework of intentional torts. Unlike negligence, which focuses on unreasonable conduct, assault and battery require intent. Understanding how these torts differ makes them much easier to analyze.
What Is the Difference Between Assault and Battery?
Assault involves placing another person in reasonable apprehension of imminent harmful or offensive contact.
Battery involves harmful or offensive physical contact.
The key distinction is that assault does not require contact, while battery does.
Assault
Assault requires:
• An act by the defendant
• Intent to cause apprehension of harmful or offensive contact
• Reasonable apprehension by the plaintiff
The plaintiff must be aware of the threat at the time it occurs.
Example: Raising a fist and threatening to strike someone may constitute assault if it creates immediate fear of contact.
Battery
Battery requires:
• Harmful or offensive contact
• Intent to cause such contact
Contact does not need to cause injury—it only needs to be offensive or harmful.
Even slight contact may be sufficient if it would offend a reasonable person.
Example: Striking someone or even grabbing an object closely connected to them may qualify as battery.
Key Differences
The most important differences are:
• Assault → apprehension of contact
• Battery → actual contact
• Assault requires awareness; battery does not
Example
If a defendant swings and misses, causing fear, this is assault.
If the defendant makes contact, it becomes battery.
Transferred Intent
Transferred intent applies between assault and battery.
If a defendant intends to commit assault but instead causes a battery, intent transfers and liability still applies.
Common Exam Traps
Assault and battery questions often include traps such as:
• Confusing fear with apprehension
• Forgetting that battery does not require injury
• Overlooking transferred intent
Careful attention to the elements is critical.
How Assault and Battery Are Tested on the Bar Exam
Questions typically require:
• Identifying whether contact occurred
• Determining whether apprehension was present
• Applying intent
On essays, clearly distinguish between assault and battery. On multiple-choice questions, focus on whether contact actually occurred.