Assault, Battery and Mayhem – Trespass to the Person

INTRODUCTION

Assault and Battery are two terms that are used interchangeably extremely often. In one’s mind, the term ‘assault’ means to physically hit or injure another, but it is not so. They are two distinct legal terms. In reality, it is ‘battery’ that means the action of physical force upon a person, whilst ‘assault’ refers to attempting battery or allowing one to believe that an act of battery is about to occur. Both of these torts are criminal offences under criminal law. There is also another tort in relation to Assault and Battery called ‘mayhem’ which is an offense against the person in which the offender violently deprives his victim of a member of his body, thus making him less able to defend himself. It may also be called as the “intentional maiming”. This article delves into the details of these torts, their essentials, and its definitions.

BATTERY

Before we understand what battery is, it is essential to understand the term ‘battery’, its meaning and its essentials.

Meaning: Battery refers to the intentional application of force to another person without any lawful justification. It is defined in the Indian Penal Code under Section 350.

S350. Criminal force.—Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

The essentials of battery are as follows:

Use of Force – Battery is the use of force against another person without any justification. The wrong is constituted no matter how small or trivial the force may be and even if no such harm is caused to the victim. Force doesn’t always need to mean bodily harm. It can be caused through use of other things like a stick, bullet, heat, light, etc.
Without lawful justification – It is imperative that the use of force should be intentional and should not have any lawful justification. It is impossible for humans to survive without having physical contact with each other. Not every physical contact constitutes a battery. When the contact is aggressive, and non required it may become a battery. However, the use of force is justified when it comes to the saving of a person’s life. In Leigh v. Gladstone [(1909) 26 T.L.R 139], the force-feeding of a hunger-striking prisoner to save his life was held as a valid defence for battery. Any injury that is caused unintentionally or by accident, is also not considered as a battery. In Stanley v. Powell [(1891) 1 Q.B 86], the defendant was a part of a shooting party, and he aimed to fire at a bird, but the pellet accidentally wounded the plaintiff, who was another member of this party. It was held that the defendant was not liable as the act was not willful. Use of force to oust a trespasser is also justified, but it should be reasonable. In Cherubin Gregory v. State of Bihar, it was held that fixing a live electric wire, without due warning to keep trespassers away and causing the death of such trespasser was actionable.

Generally, battery is subclassified into the following categories –

Simple Battery
Sexual Battery
Aggravated Battery

Simple Battery – It includes all forms of unlawful and unjustified contact with another person. It is the most basic form of battery, and it is not essential that injury should be caused to the victim. There should be a intent and willfulness to cause the harm.

Sexual Battery – It is a crime that involves the act of intentionally or recklessly engaging in, or causing, offensive or unwanted sexual contact with a person’s body. The main difference between sexual battery and rape is that sexual battery does not involve any intercourse. Sexual battery includes the action of touching one’s intimate body part and doesn’t necessarily warrant the act of intercourse itself.

Aggravated Battery – While simple battery is a simple offence and does not necessarily constitute any harm to the victim, aggravated battery is done with the intent to cause some serious injury or hurt to the victim.

The scope of liability for battery was established in a landmark American case Vosburg v. Putney [80 Wis. 523; 50 N.W 403] where the defendant and plaintiff were school students who were seated opposite of each other. The defendant kicked the plaintiff slightly below the knee, but he did not intend any harm. At first, the plaintiff did not feel any pain but felt a pain a few moments later. The plaintiff had actually undergone a surgery in the same place only a few weeks earlier. The plaintiff became severely ill and developed a weakness in his leg for the rest of his life. The plaintiff was awarded damages.

ASSAULT

Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery upon him. The wrong of assault is completed when the defendant creates an impression in the mind of the plaintiff that an act of battery is about to be committed. Assault takes place before battery. A clenched fist is an assault, but throwing a punch and hitting the other person amounts to battery. The Indian Penal Code defines Assault under Section 351 as follows –

Assault. —Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

The essentials of Assault are –

Intent to Cause apprehension – Assault must have intent. If a victim has a reasonable circumstance to believe that the tortfeasor is about to harm him, then an assault has taken place. In the case of R v. S. George [9 C. & P. 483] it was held that pointing a pistol at one person, whether or not it is loaded from a distance that could cause injury was held as an assault.
Imminent Harm – It is essential that there should be a prima facie ability to do the harm. If the fist or stick is shown from a distance and incapable of doing a harm, then it cannot be considered as assault. The harm should be immediate and cause reasonable apprehension in the mind of any prudent person.

Some landmark cases that defined the scope of liability in assault are –

R v. Meade and Belt [(1823) 1 Lew. C.C 184] – In this case, it was held that singing menacing and threatening songs around the plaintiff’s house is not an assault.

R v. Constanza – [(1997) Crim. LR 576] – The defendant amounted a hate campaign against an ex-colleague by sending hate letters, following her home, writing offensive words on her door and so on. The defendant contended that mere words does not amount to assault. The judges overruled the rule from the case of R v. Meade and Belt and the defendant was convicted of assault.

Stephen v. Myers [(1830) 4 C. & P. 349] – The plaintiff was the chairman of a Parish meeting, and the defendant was also seated at the same table. During the proceedings, the defendant became angry and interrupted the meeting. The other members voted to expel him from the meeting. The defendant advanced upon the chairperson to hit him but was stopped. The defendant was held liable for assault.

Hopper v. Reeve [(1817) Taunt. 698] – If a person is about to sit on a chair and the chair is pulled, there is an assault as long as he takes to fall to the ground. The moment he makes contact with the ground, it will become a battery.

MAYHEM

Mayhem is a tort that causes severe injury to the victim such that he is unable to defend himself from the tortfeasor. It is closely intertwined with assault and battery. While assault refers to the threat of battery, and battery is the physical usage of force against a person, mayhem deals with the disfigurement or loss of any body part due to physical injury caused by the tortfeasor. The disabling of an arm, hand, finger, leg, foot, or eye are examples of mayhem. To be guilty of the criminal offense, one must intend to dismember the victim or must assault him so recklessly as to create the danger of dismemberment even though not intending to cripple.

Several jurisdictions do not consider the difference between mayhem and battery, but rather count mayhem as a form of ‘aggravated battery’ as is done in countries like Japan. The United States considers mayhem as a felony. The concept of Mayhem can be understood through the following cases –

Fetter v. Beale [91 Eng. Rep. 1122] – The plaintiff had recovered damages from the defendant for an action of battery. Shortly thereafter, “part of his skull by reason of the said battery came out of his head”, and the plaintiff brought a subsequent action under mayhem. Through this case, the scope of mayhem was also expanded to loss of skull.

Garrett v. Taylor [(1676) 81 ER 726] – It was held that a quarryman had a cause of action against the defendant who had caused the plaintiff’s customers to discontinue buying the quarried stone by threatening them with ‘mayhem’.

THE DIFFERENCES

The basic difference between assault, battery and mayhem has been established above. Assault is an action that causes an apprehension in the mind of the victim that an act of battery is about to take place; Battery refers to the act of striking someone with physical force and no lawful justification and mayhem refers to the act of crippling someone and rendering them defenseless. Assault generally refers to only intent to cause harm, whereas both battery, as well as mayhem, inflict physical injury upon the victim.

Assault takes before the crime of battery is committed and mayhem is a severe form of battery. All these 3 torts are associated with each other and form an integral part of criminal as well as tort law.

By – Nirupama V Shankar

The Tamilnadu Ambedkar Law University

REFERENCES

Bangia, R.K., Law of Torts, 2011

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