Unlike battery, no contact is necessary for the tort of assault. Instead, this tort protects against the apprehension of an imminent contact. For example, let’s say I swing my fist at your head. If I hit you, it’s a battery: I intended a harmful or offensive contact and one occurred. But in the very act of you seeing the punch coming, I’ve also committed an assault. Like battery, assault has two elements.
- Intent to cause, or knowledge with substantial certainty that one will cause, the apprehension of an imminent harmful or offensive contact.
- The actual occurrence of the apprehension of an imminent harmful or offensive contact.
Once again, assault is judged by objective standards. For the intent requirement, would a reasonable person in similar circumstances know with substantial certainty that an imminent apprehension was likely to occur? And for the conduct requirement, would a reasonable person in similar circumstances find the apprehended contact harmful or offensive?
If both these questions can be answered in the affirmative, an assault has taken place.
What this means is that, while assault and battery often go hand in hand, that need not always be the case. Just as it is possible for there to be an assault without a battery (I take a swing at you and miss), there can also be battery without assault (I come at you from behind, hitting you without you knowing the blow was coming).
Also of note, “imminent” truly means just that. Getting a phone call from an angry rival who says, “I’m coming over now to stab you in the neck,” is not an assault, as the apprehended, while definitely harmful, is not imminent. Imminent means very close to immediate. You must see the knife coming.