To Fight For Your Rights
Do You Know the Difference Between Assault and Battery?
Mar 14, 2018
Have you been charged with Assault? If so, you're in the right place.
North Carolina Attorney Bill Powers has been representing clients charged with assault and battery since 1992. In this episode, Attorney Powers answers the questions that matter to you when you when you've been charged with assault.
What’s the... Read More.Modified Transcript of “Do You Know the Difference Between Assault and Battery?” for the Hearing Impaired
Announcer: You're listening to "Law Talk with Bill Powers", your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss everything from legal issues and legislation to practice tips and policy. Now here's your host, an NBTA board-certified criminal law specialist, former President of the North Carolina Advocates for Justice and renowned trial lawyer, Bill Powers.
Robert Ingalls: Welcome to another episode of "Law Talk with Attorney Bill Powers". I am Robert Ingalls, and I will be your guest host for this episode. How are you doing today, Mr. Powers?
Bill Powers: I'm well. Hello.
Robert Ingalls: All right. It is nice to be here with you again today, and today we are talking about assault and battery. Those terms I've heard thrown around, and they almost come off synonymous.
Bill Powers: They are.
Robert Ingalls: Okay. That was my first question. Is there a difference?
Bill Powers: There are technical legal differences between an assault and a battery, both in the civil context and the criminal context. From the average person perspective, we tend to use the terms interchangeably when you assault and/or batter somebody.
Robert Ingalls: Now, are there different levels of assault and battery?
Bill Powers: Mm-hmm (affirmative).
Robert Ingalls: So it's more than one? It can be different charges?
Bill Powers: There are not only different levels, there are different types, classifications of assaults, and that's true with many criminal type of cases in North Carolina. The big picture item is, is it a felony or is it a misdemeanor in state court? But there are also different types of assaults and different punishments, based on the type of the assault in South or North Carolina. For example, in North Carolina we may have a simple assault, we may have assault with deadly weapon, we may have an assault on a female, we may have a felony assault, and then we have what lawyers sometimes refer to as the alphabet assaults, which is "ADWIKSI" versus "ADWISI", and that's an acronym for assault with a deadly weapon inflicting serious injury, versus assault with deadly weapon, intent to kill, inflicting serious bodily injury. And so that's where you get the ADWIKSI and ADWISIs. As you go up in the level of severity of the injury, oftentimes the level of punishment goes up as well.
Robert Ingalls: Sure. When you say simple assault, what would constitute that?
Bill Powers: Well, in district courts, most of the assaults we see, and there is such a thing as a public affray, which is a fight, which is not ... It sort of is assault when you think about it. If people are fighting, they're hitting one another, but sometimes we see people, my generation used to say someone got in a tussle. But basically, it's an unlawful touching of the person of another with all kinds of little subcategorizations what a touching means. But most of the assaults we see in court, at least I see in court, relate to pretty kind of mundane circumstances. At a bar, someone's getting lippy, talking smack, some pushing ... assault can be a push. I've seen assaults with different types of weapons. We have assault with deadly weapon. Weapon doesn't have to be a gun or a knife. It could be a stick. It could be a rock.
Robert Ingalls: I'm assuming when you bring a weapon in, it probably makes it a more serious offense.
Bill Powers: Yeah, I mean, understandably so. And a lot of this, by the way, comes from this idea of a codification ... and I'm not referring to a fish ... of the common law in North Carolina. And by the way, North Carolina still has common law type of offenses, and sometimes there's an interplay between common law and statutory.
Robert Ingalls: For the lay listener, what is the difference between common law and statutory?
Bill Powers: Right. Great question. Well, we were one of the first 13 colonies, North Carolina, we had King George was our king, and the law that came over, I guess, with the Pilgrims was the law that was known by everyone. It was common. That's where the term comes from. And they were offenses, sometimes against the Crown or your co-citizens. And so there was this common law that everyone knew you couldn't do X, Y, and Z.
As we've developed over years, we've actually ... The French like doing this, Napoleon liked it more. I don't want to get too much into this, but they liked the codification of law, making codes and writing things down. So we tend to see in North Carolina, we're talking about assault and battery, "On this and this date, Bill Powers did knowingly and intentionally willfully assault and/or batter by," then there's some level of description, "punching someone in the nose, in violation of North Carolina General Statute Chapter ..." Whatever that may be.
So that may be the charged offense, but the way we address it in court and allege the elements of it, what we call prima facie elements, first facts of a case, are that you did unlawfully, intentionally, willfully assault and/or batter this person while in Mecklenburg County in North Carolina ... you know, make sure we have a territorial jurisdiction. So yeah, those are the basic elements every lawyer, that's kind of one of the first things you learn when you start practicing law or going to law school, actually, is what are the elements of the assault and what are the ... If I'm in a restaurant and I turn around, and I accidentally spill a glass of wine on you, is that an assault? Versus if I take a glass of wine and splash it in your face, is that an assault? Or if I take the glass and smash over your head, is that an assault?
Robert Ingalls: With a deadly weapon, perhaps, at that point.
Bill Powers: Sure, and maybe, if you cut someone's jugular, then you get assault with deadly weapon ...
Robert Ingalls: Inflicting serious injury.
Bill Powers: ... inflicting serious injury. And maybe you did it in such an extent that you meant to kill him. So that single act can be described across a wide range of circumstances. And that's something that I tell clients, it's not all that unusual, you were just one step away from being to the next worst thing, that it could have gone the wrong way. And that's why they don't always understand, it's only a misdemeanor, why is the judge making me do X, Y, and Z? And I say, "Because you were lucky. The person didn't have to go the ER, or the person didn't almost bleed out," or something like that.
Robert Ingalls: Right. Perfect. One of the things, it's getting more fanfare in the news lately. I don't know if "fanfare" is quite the right word for it, but has gotten more air time, is domestic violence. You're seeing it in sports and things like that. What makes an assault into the area of domestic violence?
Bill Powers: Well, there are some specific statutory provisions, and normally you're thinking of assault on a female, but to be fair, there are assaults amongst the different sexes where one person may be assaulting the other. And "domestic", in the purest sense of the term, are people who are residing with one another or having relationships with one another, in some instances have children with one another. The reason that there are some things I'm distinguishing is that there's also an aspect of domestic violence involves our civil courts, and we talk about restraining orders. So it's not unusual for us to see an assault, whether it be a simple assault or an assault on female, which is a man striking a woman, the man's over 18 years old, of age. And there's a separation, and it's frankly more serious from a criminal sanction punishment.
Assault on a female is a more serious charge than a simple assault. So your sex, your genetic makeup, XY chromosomes, makes a difference, but there's also a possible consequence of a restraining order based on a domestic relationship if you have lived together or, even if you're not anymore, it may have a what we call a 50B ... it's North Carolina General Statute Chapter 50B ... versus a 50C, which may be people that maybe they're strangers. So we may have a restraining order, which is related to, but certainly different than, the criminal charges, and if you violate the restraining order, it's actually a separate criminal charge in and of itself. So domestic, normally we're referring to relationships where people have domiciled or lived together or had a dating relationship or children together.
Robert Ingalls: Another one that, it doesn't come up a lot, but I've heard it before, is sports officials, I guess when people attack the referee or something like that. Is that its own level?
Bill Powers: Well, there are certain categories and classes of offenses. There are also certain, I guess, categorizations or acknowledgements, if you will, of certain types of people or susceptibilities. So we see special protections and/or punishments or enhancements, if you will, to punishments for ... well, I already gave one example, assault on a female, male versus female, over the age of 18. But we also have assault on a child under a certain age. We also have assault on law enforcement officers. We also have assault on emergency personnel, EMS. We have assault on sports officials. They're in a weird position that they're not able to defend themselves.
Robert Ingalls: There's lots of angry people just right there near them.
Bill Powers: Oh sure, and people, I mean-
Robert Ingalls: People get very into their sports.
Bill Powers: The term "fan" comes from the word "fanatic". Yeah, and actually it kind of comes from this idea, when you think of a common law, where the fairness of the fight, for lack of a better term, or the injury. So if you have assault with a deadly weapon, that's more serious than if you and I engage in a tussle or a brawl with our fists, fisticuffs, mano y mano, literally hand on hand, is different that when I change the circumstances, and I pull out a weapon. And then I take advantage of a circumstance or a particular susceptibility. I've turned myself into more of an aggressor.
That's also why you have special laws regarding carrying a concealed weapon, because there's this old common law idea that it wasn't fair to get the drop on somebody. I guess if you and I fought with our fists it was one thing, but then if I have a weapon concealed, I now have placed myself in a stronger position, and in a higher, in a greater likelihood ... and I would be remiss in failing to note this ... a higher and greater likelihood of a more substantial level of injury.
Not to say that you cannot do some serious damage with fists. We see this on TV where people punch each other in the nose, and that can be a bloody, brutal lifelong-changing event that we get used to, kind of normalized on TV.
Robert Ingalls: Sure, until you get punched in the face yourself, and you're like, "This is not normal."
Bill Powers: Right, and you know, as Mike Tyson always said, "Everyone has a plan till they get punched in the face." But I've seen the pictures where maybe someone has some higher level of training, maybe they're an expert in ju-jitsu or something like that, or a black belt, and there are legal ...
Robert Ingalls: And that brings me to my next question that I had, is if someone is specially trained, like if someone has been an Army Ranger or if they know ju-jitsu, does that change the case for them?
Bill Powers: It can. That may fall more in a category of defenses and duty to withdraw. I can't think of one recently, I'm sure there's one out there. You do enough of these things and you forget, but I tend to see those on felony cases, where ...
Robert Ingalls: Go ahead. Oh sorry, I didn't mean to cut you off.
Bill Powers: No, it's all right.
Robert Ingalls: I think the one that always sticks out for me, and I've heard other mention as well, is the Nicolas Cage movie, "Con Air".
Bill Powers: "Con Air", right.
Robert Ingalls: He was an Army Ranger, and he ended up defending his wife, and-
Bill Powers: Right, and his hands are lethal weapons and all that.
Robert Ingalls: I think he killed a guy and went to jail because of that.
Bill Powers: Right, and we're making light of that, because we're on a podcast, and I mean, it's hard to listen to, literally, the gore, but it helps explain and make a point. When I've got someone sitting in my office, it's obviously much more serious, but yes, there are circumstances where you have a duty to retreat. You have a duty to back away or separate yourself from a situation, and I think that's the logic behind the common law and the General Statutes, is to prevent people from really seriously hurting one another.
It's an imperfect system, because there's no law that ever can be made or written that fits every circumstance, every fact pattern. There has to be some level of leeway, and that's why, partly, we have juries, is that the jury is meant to be the societal norm, 12 peers that adjudge what is reasonable or not reasonable in use or force or who has a duty to retreat, or whether or not there was a particular level of susceptibility. And again, because there's this common law, commonsensical kind of approach to things.
Robert Ingalls: Sure. Now, I don't want to put you on the spot, but a question that I have is, let's say you're in a bar, and somebody slugs you. In that moment, do you have the ability to defend yourself inside the law?
Bill Powers: Well, you have a limited ability to defend yourself and prevent further injury. Unfortunately, what happens, I see as a practical matter, is that it escalates or goes something further. And there may be times where you have a duty to retreat, even though that doesn't seem particularly fair. So do you get a free punch back, meaning, "Well, he started it"? Not necessarily, because even if you're not charged with assault, you may be charged with willfully engaging, and I promise you, they don't just look ... when I say "they", the courts and the district attorney's office in deciding whether to prosecute a matter or indict a matter, take it to a grand jury ... they are not just going to look at who threw the first punch. They're going to look at the background that got you to that point.
So for example, let's say that you used a fighting word ... and these are terms of art, comes from common law ... you use a certain word that is meant to evoke, in a common parlance, people know that that's going to evoke a visceral or physical response, and I punch you. Now, this is something you don't see as much anymore. I mean, we're not dueling one another, but this is the logic, where it came from. And I punch you in the nose, as an example, and the jury may say, "Well, he kind of deserved it," or-
Robert Ingalls: He's asking for it.
Bill Powers: "That was a normal, customary reaction." We get into these more normally, not in insults of character or honor, but defending someone else.
Robert Ingalls: Yeah, and that was a question I had as well. Let's go back to that same club, and you're walking through with your wife, and somebody reaches out and puts their hands on her.
Bill Powers: Right, then that may be more of a justification, and legal justifications as defenses work as long as the jury says it was necessary and proper, and you used the force in extent necessary to effectuate that defense. And you have to be right.
Robert Ingalls: So there's a good chance you're still going to find yourself in court?
Bill Powers: Well, you may.
Robert Ingalls: But you may have good defenses.
Bill Powers: Right, and what I see as a practical matter happen is that several people get cuffed, and then we're pointing fingers at one another in court.
Robert Ingalls: We sort it out later.
Bill Powers: Right, right.
Robert Ingalls: And that brings me to my last question, is ... We talked about a couple defenses just now. Are there other defenses to assault and battery?
Bill Powers: Sure. Well, let's assume, the biggest one is you didn't do it, so that's always-
Robert Ingalls: The Shaggy defense, "Wasn't me."
Bill Powers: Yeah, "It wasn't me." Or "Are you going to believe me or your lying eyes?" kind of deal. Yes, there are defenses, but they're hyper-technical in nature, and frankly, a lot of these assault and battery cases are heat of passion, heat of the moment, you know, I didn't really have time to think. And so when you're engaged in one of these circumstances ... and we oftentimes see them made even more serious and complicated by the consumption of alcohol or drugs, people aren't acting as they normally would ... are you really taking the time to think, "Well, I'm going to use the force reasonably necessary to defend somebody," or "You grab my significant other, do I get to punch you in the face?"
My experience has been that law enforcement try to do a couple things right off the bat. One, they will respond quickly, to make sure it doesn't escalate. Two, they want to make sure that other people in the area don't get hurt, because you've got these uncontrolled people flailing around. And third, they don't want to get injured in the process of subduing people, and so you want to put a stop to the situation. You want to get it calm, and sometimes that necessitates taking people out of the circumstances, handcuffing them, maybe put them in the back of a patrol car, maybe, if they think it's appropriate, arresting them. And that is the best way to separate or defuse the situation.
I want to be fair about this. I have seen in my 25-year career now a major difference in attitude of law enforcement for defusing situations, as opposed to escalating situations, especially in the Charlotte-Mecklenburg area. I have to compliment law enforcement in training, whether it's CMPD, Charlotte-Mecklenburg Police, or the sheriff's department. They have really become quite good at calming things down, getting control of the situation, enforcing the law. But I really have not seen near as much of escalation by law enforcement, and I think people say, "Oh, that never happened." Yeah, it did. Years ago, you used to see it. I don't see that anymore. I'm really kind of proud of that. I'm sure there are circumstances, I'm sure ... People are human, as well, that wear badges. But it's really changed a lot.
I also think it's not as acceptable in our society anymore to see a bar brawl and not to have a consequence. You know, when I was in college, you'd be at a bar brawl, and people would be sitting around and maybe place that call and maybe they didn't. That's not acceptable anymore.
Robert Ingalls: Yeah, I mean even 10 years ago, for me it was like that. It wasn't quite as big of a deal, and I remember when I was even younger in school that when you would get in a fight, the police got called to the school. And my parents just, it blew their mind. It blew their mind that the police were going to show up and deal with the fight at school, and I think that just speaks to the cultural shift.
Bill Powers: Right, right. And there was a level of intentionality. School's a great example. I hadn't thought about it until you mentioned it, but there was an intentionality to a zero tolerance policy that anyone that was involved in a fight got suspended and/or criminally prosecuted, whether it was adult court or juvenile court. I don't know if that was always a wise expenditure of funds, but I think I understand the logic. The logic is, is that we don't want the rest of the kids getting injured during this mayhem or melee. There's a reason those terms mean something, is it's completely out of control. It's the worst part of humanity, you know, beating on one another literally.
Robert Ingalls: You have answered the questions I have. Is there any last words on this subject?
Bill Powers: Well, I would say that if you have been charged with one of these many different types of offenses, talk to an attorney quickly. Don't just assume that you can go into court and say, "Well, sorry, I shake your hand." There are consequences to actions. I think as a policy, the courts, the DAs, law enforcement don't take a shine to these type of offenses, and you may be needing some level of preparation going in. On a DWI case, we talk about getting an alcohol assessment, maybe doing some community service. On assault type of cases, we may send you for the same alcohol assessment. We may send you to an anger management class. There are things that you need to prepare for, I think, beforehand ... ergo, the word "prepare" ... that really make a difference.
Robert Ingalls: So you could actually get them in a better position for their very first appearance in court by doing some, maybe, legwork in the beginning, that they'd have a better outcome.
Bill Powers: Sure. It depends on the facts of the case, but it's not unusual for me to recommend a client get an alcohol assessment or some level of treatment, if it's necessary. I'm not here to judge them in the sense I think you're a terrible person, but yeah, that's a lot what lawyers do, is we explain the legal aspects, but we also counsel people, and we try to put them in the best circumstances we can, given their history and the record of the facts, to make them eligible, maybe, for a deferral type of program. Or maybe going to the DA and saying, "Can we pay you some community service or pay some restoration or fees for medical bills?" I mean, some of these things get expensive. So yes, I think there are things that you can and should do, and if you don't, I think it's a mistake.
Robert Ingalls: So that proactive approach might gain you something with the district attorney and/or the judge?
Bill Powers: Yes, and that gaining thing to me is reasonableness in showing that you're taking the offense seriously and that you ... before there has been any level of adjudication, there has been an acknowledgement that something didn't go the way it should have. It doesn't mean you're guilty. There are times where, even though the person says, "I absolutely, positively was not involved. I'm fighting this case," I say, "Go ahead and just get an assessment either way. It's not going to hurt you, and it's showing that you're taking the charges seriously." So yes, I do.
I think it's a bad idea in any type of criminal case just to roll into court and let's see how things work out. I tend to over-prepare for everything I can when I'm going to court, because there's consequences now of the convictions. I mean, with computers nowadays, records show up forever unless they're expunged, and even then they sometimes will show up on a database somewhere. I don't take anything lightly anymore as a lawyer. I want to go in there and try to help my client the best I can.
Robert Ingalls: And I assume, next to theft and larceny and things, that employers probably aren't very high on violent offenses as well.
Bill Powers: Right, violent offenses or what appear to be offenses related to substance abuse. Don't be afraid to call a lawyer. We at our office offer a free confidential consultation. We truly do want to help people, and when we don't charge for a consult, and it's confidential, why not?
Robert Ingalls: All right. Well, thank you, sir.
Bill Powers: My pleasure.
Robert Ingalls: All right.
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