From Attempted Battery to Menace

From Attempted Battery to Menace

The word assault carries three technical meanings, and a statute or an exam question may be using any one of them, so sorting them out comes before any analysis of the menace clause. The first meaning is loose: assault is sometimes used as a stand-in for battery, the completed offensive contact itself.¹ Some jurisdictions treat assault as a generic label covering either offense, so a defendant who intentionally injures someone is convicted of assault rather than battery.² Battery needs no beating, because contact with anything closely identified with the body is enough. In a civil suit, Fisher v. Carrousel Motor Hotel, a club manager snatched a plate from the plaintiff's hand and shouted that the plaintiff could not be served because of his race. The Texas Supreme Court held that the intentional grabbing was a battery, even though the plaintiff was not touched and did not testify to any fear of injury.³ The court added that there can be a battery without an assault, which shows that contact and apprehension protect different interests. A statute that uses assault to mean injury is therefore describing a battery under another name.

The second meaning is the traditional criminal one: assault is an attempt to commit a battery, and it requires the specific intent to cause physical injury.⁴ The offense takes this shape because criminal law has long punished failed or interrupted crimes, and a blow that misses or is stopped is a failed battery. The definition therefore centers on the attacker's goal. California's statute, for example, defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.⁵ Since the focus is the attacker's aim, the victim's state of mind drops out of this version entirely. An actor who fires a loaded gun at someone's back and misses has committed this kind of assault, even though the target never knew about the shot and felt no fear.⁶

The third meaning looks at the encounter from the victim's side. Assault in this sense is the act of putting another in reasonable fear or apprehension of an immediate battery, by conduct amounting to an attempt or threat to commit one.⁷ Tort law uses this definition: an actor is liable when the actor intends to cause a battery or the imminent apprehension of one, and the plaintiff is put in well-founded apprehension of an imminent battery.⁸ The tort protects the victim's security against the expectation of an imminent touching, so the actor's goal can be fright alone. The idea is old, because an assault could be committed without any contact once it became settled that a show of force raising apprehension in the victim's mind was enough.⁹ The unloaded gun shows how this meaning separates from the second. An actor who threatens someone with a gun the actor knows is empty, for the purpose of frightening, commits the apprehension type of assault but not the attempted-battery type, because the actor is not trying to hurt anyone.¹⁰

The meanings do not line up, and the gap between the second and third is where the menace clause lives. Traditional criminal assault is narrower than assault in tort, because a person who deliberately places another in fear of a battery but never means to carry out the attack falls outside a statute like California's, although damages in tort may still be available.¹¹ Students lose this issue when they treat intent to frighten as if it were intent to injure, because the traditional criminal definition asks about the second and the tort definition is satisfied by the first.

Most jurisdictions today have closed the gap that the parking-lot charge exposes by extending criminal assault to conduct that deliberately places another in fear of a battery, even when the actor has no intent to carry out the attack.¹² The justification is that a person who deliberately terrorizes another causes a real injury to the victim's security, and that injury exists whether or not a blow was ever planned. The Model Penal Code joins this trend only in part. Its simple-assault provision reaches an actor who "attempts by physical menace to put another in fear of imminent serious bodily injury."¹³ The Code thus extends assault to conduct that arouses fear, but only under limited circumstances.¹⁴

The limit follows from the difference between damages and punishment. A tort judgment moves a loss from the person who was frightened to the person who did the frightening, and the amount can be scaled to the harm. A criminal conviction brands the actor and carries a criminal sanction. If it attached to any conduct that frightened someone, it would sweep in jokes, flashes of temper, and carelessness, because each of those can produce fear in a victim without anyone having set out to terrorize. So the Code adopts the menace theory and fences it with requirements about the actor's purpose, the kind of conduct, the nearness of the threatened harm, and the seriousness of that harm. Even so, a fair question remains: should conduct that arouses fear, without any intent to inflict physical harm, be subject to criminal penalties at all? The traditional attempt-based definition answers no. The menace clause answers yes within limits, and the next section shows what those limits are.