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What is the difference between assault and battery?

Assault and battery charges can be confusing.  The terms themselves frequently mean the same thing.  An assault is “a violent verbal or physical attack.”  Merriam-Webster.com. 2020.  https://www.merriam-webster.com (30 March 2020).  A battery is “an offensive touching or use of force on a person without the person’s consent.” Merriam-Webster.com. 2020.  https://www.merriam-webster.com (30 March 2020).

Certainly it’s easy to understand how people confuse these terms.  The act of punching someone satisfies both of the definitions we provided.  Even more confusing, certain states refer to assaults as batteries, and others refers to batteries as assaults.  The legal definitions involved differ by jurisdiction.

The purpose of this blog post is to describe the differences between assault and battery in Wisconsin.  Our Milwaukee criminal defense attorneys spend a significant amount of time defending all Wisconsin criminal charges.  We fight charges ranging from relatively mitigated offenses, like disorderly conduct and misdemeanor battery, all the way up to the most serious sexual assault charges.  Finally, don’t hesitate to call us with any questions at (414) 20-0202.

Definition of assault

Although laypeople use the phrase “assault and battery” to describe a certain kind of crime, it doesn’t exist in Wisconsin.  The only application of the term “assault” is in the context of certain sexual assault crimes.  Here are a few examples:

Fourth degree sexual assault

Firstly, fourth degree sexual assault is a serious charge that can result from relatively mild infractions.  The charge is classified as a Class A misdemeanor, meaning the maximum penalty the defendant faces upon conviction is 9 months in jail, $10,000.00 in fines, or both.

Secondly, let’s talk about fourth degree sexual assault examples.  Section 940.225(3m) of the Wisconsin Statutes defines fourth degree sexual assault:

… whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

Finally, what’s an example of fourth degree sexual assault?  In its most simple form, a fourth degree sexual assault could be simply grabbing someone else by the genitals without his or her consent.  Again, this offense focuses on contact.  It does not focus on sexual intercourse, as most other sexual assault charges do.

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Third degree sexual assault

Third degree sexual assault is a felony charge in Wisconsin.  It’s one step more serious than fourth degree, but certainly includes some concerning behavior.  Additionally, the charge is a Class G felony.  That means it’s punishable by up to 10 years in prison, $25,000.00 in fines, or both.

Section 940.225(3) of the Wisconsin Statutes prohibits third degree sexual assault.  Third degree sexual assault occurs when:

[the defendant] has sexual intercourse without the consent of [the victim].

Finally, what’s an example of third degree sexual assault?  Importantly, force, or threat of force, certainly isn’t involved in this offense.  The defendant simply has sex with the victim without his consent.

Second degree sexual assault

Certainly sexual assault charges can include violence.  And second degree sexual assault is when charges begin to include allegations of use, or threat of, force.  Certainly lawmakers recognizes that, as this sex crime is a Class C felony.  That’s certainly a significant penalty: a maximum of 40 years in prison, $100,000.00 in fines, or both.

Section 940.225(2) of the Wisconsin Statutes provides a few ways prosecutors can prove second degree sexual assault.  Here are some of the more commonly charged versions of that statute:

  • The defendant had sexual contact or intercourse with the victim without consent, by use or threat of force;
  • Secondly, the defendant had sexual contact or intercourse with the victim causing injury, illness, disease, impairment of a sexual organ, or mental anguish requiring psychiatric care of the victim;
  • Thirdly, the defendant had sexual contact or intercourse with a victim who suffers from a mental illness or deficiency;
  • Fourthly, the defendant had sexual contact or intercourse with a person so intoxicated he could not give consent to the sexual contact or intercourse.  The defendant recognized the victim could not consent and acted with the purpose to have sexual contact/intercourse while the victim was intoxicated;
  • The victim was unconscious while the defendant had sex with him;
  • The defendant was aided or abetted by other individuals, and has sexual intercourse or contact with the victim.

Finally, what’s an example of second degree sexual assault?  Let’s address the first version of this charge.  The defendant had sexual intercourse with a victim.  Victim did not want to have sex with the defendant.  In order to compel the victim to have sex with the defendant, the defendant held a gun to the victim.

Lastly: First degree sexual assault

First degree sexual assault is the most serious assault charge an individual can face in Wisconsin.  This charge is a Class B felony, meaning it carries up to 60 years in prison.  Being convicted of such a serious assault crime is life-changing.  Certainly a conviction for this offense could send you to prison for the rest of your life.

Section 940.225(1) of the Wisconsin Statutes defines the offense:

Whoever does any of the following is guilty of a Class B felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.
(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.
(c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

Certainly it’s easy to understand how the legislature concluded these charges are serious.  In the first case, great bodily harm or a pregnancy occurred.  Great bodily harm refers to the kind of injury that will impact the way an individual lives the rest of his or her life.  And pregnancy is obviously a significant impact.  In the second case, a dangerous weapon is used to facilitate the sexual assault.  Finally, in the third scenario, the defendant acted with others.

Assault involving children:

Wisconsin specifically prohibits two assault crimes involving children: first degree sexual assault of a child and second degree sexual assault of a child.

Here’s a list of those charges, the facts required to support them, and the associated penalties:

First degree sexual assault of a child

Section 948.02(1) of the Wisconsin Statutes explains the versions of first degree sex assault of a child:

(am) Whoever has sexual contact or intercourse with a person who has not attained the age of 13 years and causes great bodily harm is guilty of a Class A felony.

(b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.

(c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony.

(d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is less than 18 years of age when the sexual contact occurs.

(e) Whoever has sexual contact or intercourse with a person who has not attained the age of 13 is guilty of a Class B felony.

Second degree sexual assault of a child

Section 948.02(2) of the Wisconsin Statutes explains second degree sex assault of a child:

Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years old is guilty of a Class C felony.

 

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Assault and battery isn’t a crime in Wisconsin. Battery is. And assault it. Contact Meyer Van Severen, S.C. at (414) 270-0202 for immediate help.

Next up: battery.  What is it?

Assault and battery, when used together, usually actually just refers to battery.  In understanding battery charges, it’s probably useful to start with the most simple definition of the crime.

Section 940.19(1) of the Wisconsin Statutes defines misdemeanor battery.  Misdemeanor battery is the lowest level battery offense in Wisconsin.  If you’re convicted, you face a maximum penalty of 9 months in jail, $10,000.00 in fines, or both.  That’s a Class A misdemeanor.  The charge is simple: the defendant simply causes some sort of bodily harm to the victim.  Bodily harm doesn’t require any kind of physical injury – physical pain is enough.  And finally, consent is an issue.  The victim must not consent to the bodily harm you’ve committed against him.

Wisconsin law prohibits two different felony version of battery: aggravated battery and substantial battery.  We’ll discuss those next.

Substantial battery

Substantial battery is similar to misdemeanor battery – the only difference is that the defendant caused substantial bodily harm to the victim.  Analyzing the elements of this offense make it easier to understand.  An “element” is a part of a crime, and the government must prove each element beyond a reasonable doubt.  Finally, the elements of each offense are provided in the jury instructions, which is a set of materials typically read to a jury during trial.  Wisconsin Criminal Jury Instruction 1222 provides the elements of substantial battery:

  1. Firstly, the defendant caused substantial bodily harm to the victim; and
  2. Secondly, the defendant intended to cause bodily harm to the victim.

You’ll notice three important points: first, the consent element is missing.  The victim cannot consent to a substantial battery.  In other words, if the victim says something like “come on and hit me,” it doesn’t matter.  It’s not a defense that the victim consented to the bodily harm.  Secondly, you’ll notice that the defendant need not intend to cause substantial battery harm.  He’s not required to try to cause the higher level of harm, he simply just needs to cause it.  And that brings us to the final point – the defendant caused substantial harm rather than simple bodily harm.

“Substantial bodily harm” means an injury to the body that includes a laceration that requires stitches/staples/a tissue adhesive, any fracture of a bone, a broken nose, a burn, a temporary loss of consciousness/sight/hearing, a concussion, or a loss or fracture of a tooth.

Section 940.19(2) of the Wisconsin Statutes prohibits substantial battery.

Aggravated battery

Aggravated battery is the third battery crime in Wisconsin.  Sections 940.19(4) and (5) of the Wisconsin Statutes describe aggravated battery:

(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.
(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.
The term great bodily harm is used in this version of battery, but not the others.  “Great bodily harm” refers to an injury which creates a substantial risk of death, serious permanent disfigurement, or which causes a permanent/protracted loss or impairment of the function of any bodily member or organ.  It also refers to other serious bodily injury.
Also important is the fact that these crimes include the defendant intending to cause the great bodily harm.  While other versions of battery include a simple attempt to harm the other party, aggravated battery actually includes the defendant’s intent to cause a higher level of harm.

Charged with assault or battery?

Individuals outside of the criminal justice system frequently refer to a charge called assault and battery.  As this blog post explained, Wisconsin law prohibits no crime called assault and battery.  Instead, there are specific battery crimes that cover what we suspect this phrase usually means.  And in Wisconsin, all assault charges are of the sexual assault variety.

If you’re charged with any kind of crime throughout the state, contact a top criminal defense attorney.  At Meyer Van Severen, S.C. we dedicate 100% of our resources to defending crimes just like these.  Call us at (414) 270-0202 for immediate help.