The Legal Dictionary for Writers: Assault and Battery

I threw a book across the room not too long ago. I won’t name it, but I will say that the reason behind it was the author’s obvious failure to do any sort of research whatsoever into the legal profession. The terminology was wrong (and I’m talking basic terminology—the kind anyone would know after watching a single episode of Law and Order), the legal climate was wrong, everything was wrong, and after one egregious mistake too many, my hand flew back and the book went sailing.

(I did pick it back up a few seconds later and ultimately finished it. The ending was quite lovely).

A lot of authors write about the justice system, which I know can be confusing and complicated. Casey Anthony, anyone? Yeah, just kidding. I’m not touching that one. But I did figure I’d do a series on the blog where I break down some of the more commonly used/misused legal terms out there. Hey, I’m still paying bar dues, so I figure I might as well use my law degree for something. First up, let’s talk about the different types of reimbursement contracts between managed care organizations and healthcare providers!

Sorry, that’s what my brain automatically defaults to. Let’s make it a little more interesting and talk about assault and battery, which, IMO, are the two most misused legal terms out there. Think about it. How many times on TV, in movies, in books, in real life, does a person get hit or kicked or beat up and complain about being assaulted? All the time, right? We all accept physical bodily harm as assault … only it isn’t.

Definition time!

Assault: An intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Battery: The offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2.Intentionally causes bodily harm to another person.

Do you see the difference? In an assault, there isn’t any physical harm. There’s a threat of physical harm, serious enough to put someone in fear that violence is about to happen, but there is no actual strike or blow to the person’s body. If I stand in front of you, threatening to beat you up, waving my arms around and being otherwise intimidating, I’m assaulting you. As soon as I throw the first punch, I’ve now committed battery. If you go to the police, I can be charged with both crimes—assault and battery.

But what if I have a gun in my hand when I threaten you, and then I pistol whip you? Now I’ve committed aggravated assault and aggravated battery because there’s a deadly weapon involved.

So there you have it: A very, very simplified version of assault and battery. There are, of course, a number of other kinds of battery—felony battery, aggravated battery on a pregnant woman, domestic battery, on and on and on. If you have any questions on those, let me know and I’ll be glad to do my best to answer them. And please be honest: what do you think of this potential series? Helpful? Not helpful? Kind of boring? Any other suggestions?

[Legal disclaimer I have to add: The above was not legal advice, and I am not your lawyer. This was for informative/illustrative purposes only. All definitions are based on Florida law, so while most states use roughly the same definitions, you should always check the statute of the state in which your story is set for the true and correct definition. For further reference on assault and battery in the state of Florida, see Fla. Stats. 784.011-085].


Posted in Legal Dictionary, Writing Tagged ,

18 Responses

  1. Susan says:

    Wow, this is incredibly informative–not to mention interesting. Definitely keep doing this!!

    And, um, I LOVE that you have a legal disclaimer at the bottom. I know it’s totally necessary, but it’s also just…so…appropriate? 😀

  2. Oh this is going to be a great series. Thanks, Meredith!

  3. Crystal says:

    Very informative.

    Yes, I’ve been tempted to throw books across the room before on the same premise (well not legal, but my musical expertise). I’m glad you finished the story anyway. Did you write the author?

    • Meredith says:

      Oh yeah, definitely not specific to law. Research is research is research, and it should always be done! I didn’t contact the author, no, because ultimately I didn’t see what good it would do.

  4. Holly says:

    Oh, very interesting! You know, it’s that kind of information that can really make or break a novel, I think. If you’re using real-world legal terms, you’ve got to get them right.

    • Meredith says:

      Exactly. I mean, I would never write a book about a surgeon without first talking to a bunch of them, running drafts by them, and making sure I don’t say anything COMPLETELY wrong. I mean, of course it’s fiction and all, so you can fuzz things if you need to, but at least get the basics right!

  5. Carol Riggs says:

    Great post; that is SO weird that “assault” doesn’t involve a physical punch or anything. That’s the legal term anyway. I will have to see how I use it in my novel (a punch IS thrown). Thanks for sharing your knowledge!

  6. Wow, I didn’t know assault involved no physical harm. Now I feel smart! 😉 Thanks for clearing it up!

  7. Trisha says:

    Very useful and informative – great idea for a series!

  8. Trisha says:

    I’m curious now though, about when the news reports a “sexual assault” – this must always mean that the person was only threatened, but not actually touched?

    • Meredith says:

      Great question! I can only speak to Florida, but here the only crime on the books is for “sexual battery.” The term “sexual assault” is more of a media term to describe a sexual battery. But like I said, that’s just Florida so I don’t know how other states handle it.

  9. kat owens says:

    the disclaimer made me LOL.

    I had no idea about this– VERY useful! You should make a regular feature of mis-used terms/ law and justice pet peeves. It would educate us all!!!

  10. K.M. Weiland says:

    Helpful post! I’ve never had cause to write about the legal profession (and don’t have any near-future plans to do so), but this sort of primer is always a useful thing to have bookmarked. Even the best-intentioned author can let research details slip when he mistakenly thinks he has a handle on a subject. It’s always best to check and double-check yourself on even the smallest of facts.

  11. Pingback: The Legal Dictionary for Writers: Theft, Robbery and Burglary « Meredith McCardle

Leave a Reply