What Is the Difference Between Battery and Assault? (Torts Deep Dive for Law Students and Bar Takers)
This post is part of the Brieflex Torts Deep Dive series — where we break down the core intentional torts and how to master them for law school and bar exams. After exploring Negligence — the law of carelessness, Products Liability — the law of defect and duty, and Defamation — words, fault, and reputation, we return to the fundamentals: Battery and Assault.
These two torts look similar but protect different interests — Battery guards against unwanted contact, while Assault protects against the apprehension of it. Here’s how to tell them apart and analyze both like a scorer.
The Core Difference: Contact vs. Apprehension
The simplest way to remember it:
- Battery is about contact.
- Assault is about anticipation of contact.
Battery happens when the defendant makes a voluntary contact that’s harmful or offensive.
Assault happens when the defendant creates a reasonable apprehension of imminent harmful or offensive contact — even if no contact ever occurs.
You can have one without the other. A shove without warning? That’s battery but not assault. A raised fist that never lands? That’s assault but not battery.
Battery: The Completed Contact
Rule: Battery is the voluntary infliction of harmful or offensive contact upon the person of another.
Elements:
- Voluntary act by D.
- Intent to cause contact (or substantial certainty that contact will occur).
- Harmful or offensive contact results.
“Harmful” means physical injury; “offensive” means contact that offends a reasonable sense of personal dignity.
Example: D throws a cup of coffee at P, hitting them. That’s battery — D intended contact, and the contact was offensive (hot liquid) and harmful (burns).
Exam Tip:
- Intent transfers. If D intends to hit A but hits B, D is still liable for battery to B.
- Accidental contact (like tripping) isn’t battery because it lacks volition.
Assault: The Anticipation of Contact
Rule: Assault is a voluntary act creating reasonable apprehension of imminent harmful or offensive contact.
Elements:
- Voluntary act by D.
- Intent to cause apprehension of contact (or substantial certainty that apprehension will occur).
- P experiences reasonable apprehension of imminent contact.
The threat must be imminent, not conditional or future.
Words alone are not enough — but words plus conduct can create apprehension.
Example: D raises a fist at P and says, “I’m about to hit you.” That’s assault. If D just says, “I’ll get you next week,” it’s not — no immediacy.
Exam Tip:
- The plaintiff must be aware of the act.
- If D swings from behind and P never sees it, that’s battery, not assault.
How They Interact
Battery and assault often appear together — and can occur in either order.
Scenario 1: Assault followed by Battery
D swings at P. P sees it coming (assault), then gets hit (battery).
Scenario 2: Battery without Assault
D throws something at P’s back — P never saw it coming. No apprehension, but there’s harmful contact → battery only.
Scenario 3: Assault without Battery
D points a loaded gun at P but doesn’t fire. P is in reasonable apprehension of being shot → assault only.
Defenses to Both
The major defenses to intentional torts apply equally to battery and assault:
- Consent: Express or implied (e.g., sports contact).
- Self-Defense: Reasonable force to prevent imminent harm.
- Defense of Others: Same standard — reasonable belief another is in danger.
- Defense of Property: Limited — only non-deadly force.
Exam Tip: If you see “mutual combat” or “sports contact,” always analyze consent first — it’s the most common defense on assault/battery hypos.
Common Bar & 1L Exam Mistakes
- Confusing apprehension with fear — the plaintiff doesn’t have to be scared, just aware of imminent contact.
- Forgetting intent transfers — if D means to hit A but hits B, liability still attaches.
- Assuming words alone create assault — they don’t. There must be an act.
- Merging the two — treat each as a separate IRAC on exams.
Quick Comparison Summary
Battery:
- Requires contact.
- Plaintiff doesn’t need to see it coming.
- Protects physical integrity.
- Example: D hits P.
Assault:
- Requires apprehension of contact.
- No physical contact needed.
- Protects mental peace.
- Example: D raises a fist but doesn’t strike.
How It’s Tested
On the bar or in 1L exams, a battery/assault hypo almost always tests your ability to:
- Separate contact from apprehension.
- Spot intent (purpose or substantial certainty).
- Discuss transferred intent if multiple parties are involved.
A typical MBE-style twist:
D throws a rock at A, misses, and hits B.
B sues for assault and battery.
Answer:
- Battery to B (contact).
- Assault to A (reasonable apprehension).
- Intent transfers from A to B.
Pro Tips
- Contact = Battery. Awareness = Assault.
- Always check if both occurred — they often overlap.
- On an exam, write separate mini-IRACs: one for Battery, one for Assault.
- Never skip defenses — consent and self-defense are easy points.
- Remember: transferred intent applies between the intentional torts of Battery, Assault, False Imprisonment, Trespass to Land, and Trespass to Chattels.
FAQ
1. Can there be an assault without physical contact?
Yes — assault requires only apprehension of imminent contact, not actual touching.
2. Can there be battery without assault?
Yes — if P didn’t see the contact coming.
3. What does “offensive contact” mean?
Contact that offends a reasonable sense of personal dignity — e.g., spitting, unwanted touching.
4. Is fear required for assault?
No — only awareness of imminent contact, not fear.
5. Does transferred intent apply?
Yes — intent to commit any of the five traditional intentional torts transfers to others or other torts.
