Written by attorney Brenton Daniel Vincenzes

What is the Difference Between "Assault" and "Battery" (Criminal Law Context)

Assault vs Battery

Often, those charged with assault or assault and battery want to know, “what is the difference between an assault and a battery?" In a personal injury case (sometimes called a “tort" case), the distinction may be different than what is contained in this Avvo guide. Here, we discuss assault and battery in the context of the criminal law in Virginia.

What is Assault and Battery?

“An assault and battery is an unlawful touching of another. It is not necessary that the touching result in injury to the person. Whether a touching is a battery depends on the intent of the actor, not on the force applied."

  • Gnadt v. Commonwealth., 497 S.E.2d 887, 27 Va.App. 148 (Va. App., 1998)

Definition of Assault

an attempt or offer, with force and violence, to do some bodily hurt to another . . . by means calculated to produce the end if carried into execution; as . . . by leveling a gun at another within a distance from which, supposing it to be loaded, the contents might injure, or any similar act accompanied with circumstances denoting an intention coupled with a present ability of using actual violence against the person of another."

  • Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955)

It may be helpful for purposes of distinguishing the term “battery" from “assault," to think of it this way:

“battery" refers to the actual contact

“assault" refers to the intention to cause the battery, plus some act in furtherance of such intent

What is a Battery?

A battery in Virginia has been described by the courts as:

“an un-permitted touching done in a rude or angry manner, with no justification or excuse."

  • Gnadt v. Commonwealth

Note: the alleged victim does not have to sustain a physical injury for the touching to be a battery. It just must be unwanted. There are additional nuances which may apply in some cases, but for purposes of brevity, when you discuss your case with our ** Fairfax criminal lawyer,** he will mention them, if relevant to your case.

Additional resources provided by the author

Virginia Code § 18.2-57. Assault and battery.

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