Assault and Battery: Criminal Versus Civil Action
Law Offices of David Drexler
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Assault and battery victims can be compensated for their injuries
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Athreat of violence is criminal, but actual violence carries greater penalties. Victims might be awarded restitution in criminal court but can also pursue a civil suit.
The crimes of assault and battery are related but distinct from each other under the California penal code. And while both can be the basis of criminal charges and civil lawsuits, how they are dealt with between those two different justice systems varies. The District Attorney files criminal charges. A personal injury lawyer who specializes in assault and battery cases, sometimes called an “assault and battery lawyer”, brings a civil action against the perpetrator on behalf of the victim.
Assault - This is less a physical act than a threat, sometimes called “attempted battery.” Technically, it’s one person threatening physical violence with the ability to do so, but falling short of actually touching the person. Under California law, the swing of a fist that misses its intended target is assault.
Battery - Battery is the completion of the intention to assault, such as when the fist makes contact with the victim. But it breaks into subcategories: simple battery can include unwelcome touching; sexual battery is non-consensual contact of any type with intimate body parts (genitalia, breasts, etc.); aggravated battery, which might rise to the level of being a felony because it results in great harm (debilitating injury, disfigurement, etc.).
Note also there is “assault with a deadly weapon,” which includes the threat of violence with or without an actual knife, club or firearm where the threat of serious bodily injury is present.
Criminal charges and penalties - An assault conviction might result in informal probation, a $1,000 fine, community service and an education program such as anger management classes.
If convicted of simple battery, the penalties can include probation, six months in jail, a $2,000 fine plus community service and mandatory education designed to stem violent behavior. Aggravated battery can carry up to a full year in jail or, if it rises to the felony level up to four years in state prison and a $10,000 fine. Assault with a deadly weapon can involve up to four years in prison as well, a $10,000 fine, weapon confiscation and victim restitution.
A quirk of California law is that while an act of battery necessarily implies an assault took place – seconds before the fist struck, for example - sentencing can only be made for one charge. This may allow the attorneys for the defendant to plea bargain for a sentence on the lesser charge, that of assault.
Civil lawsuits by victims against perpetrators - Victims can do more than depend on the court ordering restitution for the crime that was committed against them. Under some circumstances (when the perpetrator has assets worth pursuing), the responsible party can be taken to civil court in an assault and battery lawsuit, where the victim can recover money to cover losses related to the incident.
An attorney versed in personal injury would be required to pursue damages in civil court on behalf of the victim.
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