You know, words can be funny. In some arenas, they mean one thing, and then in another, they can mean something different.

This happens a lot in the practice of criminal law.

Attorney Sam’s Take On Assault And Battery

Harry Hands sees Sally Shoulder. Harry likes Sally. He calls to her and she does not answer. Perhaps she is ignoring him. Perturbed, he rather forcefully taps her on the shoulder.

Did Harry break the law?

We are talking about the potential crimes of Assault and Battery here. In Massachusetts, an assault is when you place someone in fear that they are about to be struck. The battery is when they are stuck.

Perhaps you are thinking, “Well, of course not. Sally did not incur any damage…unless she has a glass shoulder. And, in that case, still no because he couldn’t have known that.”

Your understanding would be wrong.

You see, under both Massachusetts civil and criminal law, one take’s one’ victim (for want of a better word) as one finds them. In other words, if Sally had a glass shoulder it would have been too bad for Harry because he clearly had not been invited to tap her on her shoulder no matter how meekly.

Harry is lucky, in a way, that Sally never saw him coming. Because he never put her in fear, he cannot be found guilty of assault. That is, unless Sally lies. For now, though, we will assume that Sally is an absolute truth-teller. We will get to liars in later blogs.

“Well then, if she tells the truth, he can’t be charged with a battery either.”

Why is that?

“Because he did not mean any harm. He was just trying to get her attention. She must know that!”

Let’s assume that she did. That does not help Harry. You see, Sally did not respond and we don’t know why. Perhaps she did not like Harry and just hoped that, being ignored, he would take the hint and go away. He didn’t, though. In fact, he went so far as to actually touch her.

She found that touch to be unwanted and offensive.

That is all the prosecution needs to show to prove the battery. Assuming the touching was intentional.

Harry has to have meant to tap Sally. If he had simply been walking up to her, tripped and his hand accidently touched her shoulder, then, at least under the criminal law, he would not have committed a battery.

“What if he meant to tap her but he did not know it would be offensive to her?”

Strictly speaking, that does not matter.

Now, this is all pretty much a theoretical posting. Realistically, nobody walks around with a glass shoulder, police seldom charge someone for just tapping someone on the shoulder to get their attention, although they could.

The point here is that one need not really attack someone to be charged with assault and battery.

I have handled many cases wherein there are two spouses having an argument. Finally, Wife says, “That’s it! I am leaving you!” She walks to the door and opens it, intending to leave. Husband, however, does not want her to walk out.. He wants to talk the situation out. So he grabs her by the arm and pulls her back into the apartment and closes the door.

“That’s a battery?”

It may even be and assault and battery. And its one that prosecutors will pursue.

“Wait a minute, isn’t this going a bit far? I mean, the husband just wanted to work out the argument. I would say that is a nice thing. Also, after all, he is her husband. Doesn’t that give him more of a right to do that?”

There is no exception in the Massachusetts Criminal Law statute controlling these charges that lists “nice thing” as an exception. It can’t. “Nice” is subjective. If she presses charges, the wife clearly did not find it to be nice.

In terms of the last question…no. The days when our spouses, of either sex, are simply possessions are over. While circumstances will often matter to a prosecutor deciding whether to prosecute a particular case, the fact that they are married does not mean that one can touch the other if they do not want them too.

Yes, that means that, in the area of sexual contact, being married is not a defense to forcing someone to have sex with you. “No” still means no.

And, yes, marital rape, just like date rape, is prosecuted all the time.






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