Elements of Assault
Words, without an act, cannot constitute an assault. For example, no assault has occurred where a person waves his arms at another and shouts, "I'm going to shoot you!" where no gun is visible or apparent . However, if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat , an assault has occurred. It is an assault where a person threatens to shoot another while pointing a gun, even where the victim later learns that the gun was not loaded or even real. Moreover, pointing a gun without an accompanying verbal threat is still an assault, assuming the victim saw the gun.
The intent is paramount to constitute the tort or crime of Assault. Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, the intent is established if a reasonable person is substantially certain that certain consequences will result; the intent is established whether or not he or she actually intends those consequences to result. Pointing a gun at someone's head is substantially certain to result in apprehension for the victim.
The intention of criminal assault often talk about acting "purposely," "knowingly," "recklessly," or "negligently." Acting negligently means to grossly deviate from the standards of normal conduct.
The apprehension of an imminent threat of bodily injury is a necessary element of Assault. This element is established if the act would produce apprehension in the mind of a reasonable person. Apprehension is not the same as fear. Apprehension means awareness that an injury or offensive contact is imminent. Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. For example, it may take less to create apprehension in the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An assailant who points a gun at a sleeping person has not committed an assault. Finally, the threat must be imminent, meaning impending or about to occur. Threatening to kill someone at a later date would not constitute an assault.
Assault v. Battery
Traditionally, if the victim has been actually touched by the person committing the crime, then a battery has occurred. If the victim has not been touched but only threatened, then the crime is assault. In many states, the distinction between assault and battery has been abolished and either type of action may be charged as an assault.
Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position atop the hill.” Violence, or at least some sort of physical contact, is generally implied in the term. However, while state laws sometimes differ, assault generally doesn't require that physical contact actually occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another. Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact: “battery.” You may have heard the term “assault and battery.” This refers to a situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.
Criminal Assault under IPC
Assault is a criminal offence under the Indian Penal Code, 1860. Section 351 of the Indian Penal Code provides that: “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. The offence under Section 351 is non-cognizable, bailable, compoundable, and triable by any Magistrate.
IPC also lays down punishment for assault. Section 352 lays down: Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Types of Assault
- Felonious assault is an unlawful attack or attempted attack, accomplished through force or violence, that causes physical injury to another person. This type of assault involves the use of weapons and/or serious injury. If a weapon is used, an attack is deemed a felonious assault even if no injury occurs. But there need not be a weapon for this designation. If a serious injury occurs due to an assault using hands, fists, or feet, it is also deemed a felonious assault. Therefore, both serious resulting injuries and the use of weapons are triggers for a felonious assault. Assault and battery is an example of a felonious assault. This is a type of incident that results in actual contact made and creates a need for medical attention to the victim.
- Simple assault occurs when a weapon is not used and the resulting injuries that are caused to the victim are minor in nature.
- Physical assault causes grievous bodily harm, such as prior to the commission of a murder or aggravated assault.
- Aggravated assault occurs with the use of a weapon and/or an amount of increased force.
- Sexual assault involves the use of force against the will of the victim, resulting in a rape, molestation, sodomy or similar sexual offence.
- Verbal assault – this is a type of non-physical, oral assault that results in an emotional, mental, and/or psychological injury to the victim, rather than a physical bodily injury.
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