Posted on 4/17/17

In general, an assault and battery occur at the same time. That is to say, an assault will precede a battery. Texas law defines an assault as a threat of a battery while a battery is an unwanted and offensive physical touching. Using threats or approaching someone in a menacing way can be a Class A simple assault, while using threats against someone with a dangerous weapon can be a Class C assault that carries a weighty prison sentence.

Sometimes assault and battery are not concurrent. For instance, attacking someone from behind when using physical force can be a battery without an assault. There are other cases wherein applying battery without an initial assault, such as a battery by omission, is not simple.

Battery by Omission

Battery by omission occurs when someone passively commits an offensive touching. To be liable for any crime, a defendant must have the proper mens rea, or criminal intent, and actus reus, or criminal action. For battery by omission, the mens rea may come later on and the actus reus is through a non-action, or omission. Texas law recognizes battery by omission.

Fagan Case

The 1968 case of from the United Kingdom is a battery case whose application is not simple. In that case, the defendant drove his motorcycle onto a police officer’s foot. The police officer demanded that the defendant move his motorcycle, but the defendant refused. The Court accepted that the defendant initially drove onto the police officer’s foot inadvertently. As such, there was no mens rea in driving the motorcycle onto the officer’s foot. However, the prosecution claimed that the defendant committed battery by omission; the defendant had a duty to move his motorcycle and did not do so.

The court ruled that the defendant committed battery by not moving his motorcycle. It reasoned that the defendant had the proper mens rea during the time that the motorcycle was on the officer’s foot. At that point, by not moving the motorcycle, the defendant committed battery. Thus, according to the Fagan ruling, one can commit the crime of battery without an assault and by omission.

House Search

Another example of a battery by omission can be during a house search. For instance, the police obtain a search warrant to a house of a suspected drug lord. The police suspect that the house is booby-trapped and make approach searches based on that assumption. After looking through the house for possible traps and removing some traps, the police ask the suspect if there are any such traps. The suspect replies that the police found all the traps. The police then go search the house. One officer, as she opens a chest in the basement, is blasted by a bomb and suffers severe injury. The prosecution charges the defendant with criminal battery. While the suspect/defendant did not actively batter the officer, the defendant did fail to inform the police of that booby-trap, which caused injury. This is another example of what may be considered a battery by omission.

If you have been accused of a crime, you need an advocate who is knowledgeable, experienced and skilled. Contact the law firm of Christopher Abel, a criminal defense attorney.

(image courtesy of Tony Lam Hoang) 


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