Assault and Battery – What the Commonwealth Must Prove

I. Intentional Assault & Battery


In order to prove that the defendant is guilty of having committed an intentional assault and battery, the Commonwealth must prove three things beyond a reasonable doubt:

First:  That the defendant touched the person of the alleged victim, without having any right or excuse for doing so;
Second:  That the defendant intended to touch alleged victim; and

Third:  That the touching was either likely to cause bodily harm to alleged victim, or was done without his (her) consent.
As I mentioned before, to prove an intentional assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to touch the alleged victim, in the sense that the defendant consciously and deliberately intended the touching to occur, and that the touching was not merely accidental or negligent.  The Commonwealth is not required to prove that the defendant specifically intended to cause injury to the alleged victim.

The model instruction does not separately define assault, since “[e]very battery includes an assault” as a lesser included offense.  Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622, 624 (1983).  If the evidence would also permit a jury finding of simple assault, the jury should be instructed on lesser included offenses (Instruction 2.280), followed by Instruction 6.120 (Assault), beginning with the second paragraph.

Commonwealth v. Ford, 424 Mass. 709, 677 N.E.2d 1149 (1997) (assault and battery is a general intent crime and does not require specific intent to injure the victim, but its intentional branch requires an intentional touching, and not merely an intentional act resulting in a touching); Burke, 390 Mass. at 482-483, 487, 457 N.E.2d at 624, 627 (any touching likely to cause bodily harm is a battery regardless of consent, but an offensive but nonharmful battery requires lack of consent or inability to consent); Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 634 (1931) (“An assault and battery is the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another”); Commonwealth v. Bianco, 390 Mass. 254, 263, 454 N.E.2d 901, 907 (1983) (same); Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211, 218 (1967) (same); Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521, 649 N.E.2d 784, 786 (1995), aff’d, 421 Mass. 610, 659 N.E.2d 284 (1996) (approving instruction for threatened-battery branch of assault that “when we say intentionally we mean that [defendant] did so consciously and voluntarily and not by accident, inadvertence or mistake”); Commonwealth v. Moore, 36 Mass. App. Ct. 455, 457-460, 632 N.E.2d 1234, 1236-1238 (1994) (intentional branch of assault and battery requires proof “that the defendant intended that a touching occur” and not merely “proof that the defendant did some intentional act, the result of which was a touching of the victim”); Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 584, 571 N.E.2d 411, 414 (1991) (intentional branch of assault and battery requires proof “that the defendant’s conduct was intentional, in the sense that it did not happen accidentally”).  See Commonwealth v. Bianco, 388 Mass. 358, 366-367, 446 N.E.2d 1041, 1047 (1983) (assault and battery by joint venture); Commonwealth v. Collberg, 119 Mass. 350, 353 (1876) (mutual consent is no defense to cross-complaints of assault and battery; “such license is void, because it is against the law”); Commonwealth v. Rubeck, 64 Mass. App. Ct. 396, 401, 833 N.E.2d 650, 654 (2005) (no substantial risk of miscarriage of justice from omitting separate instruction that parent may use reasonable but not excessive force to discipline child because it is merely an elaboration of “right or excuse” language).

II.  Reckless Assault & Battery

A. There is a second way in which a person may be guilty of an assault and battery.  Instead of intentional conduct, it involves reckless conduct that results in bodily injury.
B. The defendant is charged with having committed an assault and battery upon the alleged victim by reckless conduct.  Section 13A of chapter 265 of our General Laws provides that “Whoever commits . . . an assault and battery upon another shall be punished . . . .”
In order to prove that the defendant is guilty of having committed an assault and battery by reckless conduct, the Commonwealth must prove two things beyond a reasonable doubt:
First:  That the defendant intentionally engaged in actions which caused bodily injury to the alleged victim.  The injury must be sufficiently serious to interfere with the alleged victim’s health or comfort.  It need not be permanent, but it must be more than trifling.  For example, an act that only shakes up a person or causes only momentary discomfort would not be sufficient.
And second:  The Commonwealth must prove that the defendant’s actions amounted to reckless conduct.

It is not enough for the Commonwealth to prove that the defendant acted negligently — that is, acted in a way that a reasonably careful person would not.  It must be shown that the defendant’s actions went beyond mere negligence and amounted to recklessness.  The defendant acted recklessly if he (she) knew, or should have known, that such actions were very likely to cause substantial harm to someone, but he (she) ran that risk and went ahead anyway.
The defendant must have intended his (her) acts which resulted in the touching, in the sense that those acts did not happen accidentally.

If you find that the defendant’s acts occurred by accident, then you must find the defendant not guilty.


But it is not necessary that he (she) intended to injure or strike the alleged victim, or that he (she) foresaw the harm that resulted.  If the defendant  actually realized in advance that his (her) conduct was very likely to cause substantial harm and decided to run that risk, such conduct would of course be reckless.  But even if he (she) was not conscious of the serious danger that was inherent in such conduct, it is still reckless conduct if a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were so dangerous that it was very likely that they would result in substantial injury.
Commonwealth v. Burno, 396 Mass. 622, 625-627, 487 N.E.2d 1366, 1368-1370 (1986) (“the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another”; injury must have “interfered with the health or comfort of the victim.  It need not have been permanent, but it must have been more than transient and trifling . . . . For example, if an alleged victim were shaken up but by his own admission not injured, or if an alleged victim were to have a sore wrist for only a few minutes, the ‘injury’ in each instance would be transient and trifling at most”); Commonwealth v. Welch, 16 Mass. App. Ct. 271, 273-277, 450 N.E.2d 1100, 1102-1104 (1983) (“The law recognizes . . . an alternative form of assault and battery in which proof of a wilful, wanton and reckless act which results in personal injury to another substitutes for . . . intentional conduct”; elements are [1] that the act involved a high degree of likelihood that substantial harm would result to another, and [2] that the victim suffered physical injury as a result of that act).  See also Commonwealth v. Grey, 399 Mass. 469, 472 n.4, 505 N.E.2d 171, 174 n.4 (1987) (“‘The standard of wanton or reckless conduct is at once subjective and objective’ . . . . It depends on what the defendant knew (subjective) and how a reasonable person would have acted (objective) knowing those facts”); Commonwealth v. Godin, 374 Mass. 120, 129, 371 N.E.2d 438, 444, cert. denied, 436 U.S. 917 (1977) (standard “is at once both a subjective and objective standard, and is based in part on the knowledge of facts which would cause a reasonable man to know that a danger of serious harm exists.  Such knowledge has its roots in experience, logic, and common sense, as well as in formal legal standards”); Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902, 910 (1944) (“Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences”).



If the victim was injured while escaping.
The defendant may be convicted of assault and battery if the Commonwealth has proved beyond a reasonable doubt that the defendant caused    the alleged victim    reasonably to fear an immediate attack from the defendant, which then led him (her) to try to (escape) (or) (defend) himself (herself) from the defendant, and in doing so injured himself (herself).
Commonwealth v. Parker, 25 Mass. App. Ct. 727, 522 N.E.2d 2 (1988).



1. Verdict slip where alternate theories of guilt.  If the evidence would warrant a guilty verdict for an offense on more than one theory of culpability, the judge must provide the jury with a verdict slip to indicate the theory or theories on which the jury bases its verdict and, on request, instruct the jurors that they must agree unanimously on the theory of culpability.  Commonwealth v. Accetta, 422 Mass. 642, 646-647, 664 N.E.2d 830, 833 (1996); Commonwealth v. Plunkett, 422 Mass. 634, 640, 422 N.E.2d 833, 837 (1996); Commonwealth v. Barry, 420 Mass. 95, 112, 648 N.E.2d 732, 742 (1995).  See the appendix for a sample verdict slip that may be used when an assault and battery charge is submitted to the jury under both the intentional and reckless branches of assault and battery, and without any lesser included offenses.  The sample verdict slip must be adapted to include additional options if any lesser included offenses are submitted to the jury.  Where the jury is presented with a lesser included offense of assault, and the Commonwealth proceeds upon the alternate theories of an attempted battery or an imminently threatened battery the jury need not be unanimous as to the theory and a special verdict slip requiring the jury to elect between the theories is not proper.  Commonwealth v. Arias, 78 Mass. App. Ct. 429, 433, 939 N.E.2d 1169, 1173 (2010).


2.Abuse prevention order admissible in evidence.  In a prosecution for assault and battery, a judge may admit evidence of prior circumstances under which the alleged victim had obtained an abuse prevention order under G.L. c. 209A against the defendant.  While such evidence is not admissible to show bad character or propensity to commit the assault and battery, it is admissible to provide a full picture of the attack, which otherwise might have appeared as an essentially inexplicable act of violence.  Commonwealth v. Leonardi, 413 Mass. 757, 762-764, 604 N.E.2d 23, 27-28 (1992).

3.Assault and battery on public employees.  General Laws c. 265, § 13D provides:  “Whoever commits an assault and battery upon any public employee when such person is engaged in the performance of his duties at the time of such assault and battery, shall be punished . . . .”  This offense contains two elements in addition to those required for assault and battery: (1) that the victim was a public employee who was engaged in the performance of his duty at the time, and (2) that the defendant knew that the victim was such an employee who was engaged in the performance of his duty at that time.  Moore, 36 Mass. App. Ct. at 461, 632 N.E.2d at 1238. Assault and battery on a public employee may be done recklessly as well as intentionally, and intent to strike the public employee is not required under the recklessness analysis.  Commonwealth v. Correia, 50 Mass. App. Ct.  455, 457-458, 737 N.E.2d 1264, 1266 (2000).  However, the court added, “There is no explicit scienter requirement for the[] elements [of reckless assault and battery] in the statute. Assuming, without deciding the existence of such a requirement, compare Commonwealth v. Francis, 24 Mass. App. Ct. 576, 577-578 & n.2, 511 N.E.2d 38, 40 & n.2 (1987); Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 629-630, 708 N.E.2d 148, 149-150 (1999), there is ample evidence here supporting the inference of the requisite knowledge on the part of the defendant.” Id., 50 Mass. App. Ct. at 459 n.6, 737 N.E.2d at 1267 n.6.  See also Commonwealth v. McCrohan, 34 Mass. App. Ct. 277, 282, 610 N.E.2d 326, 330 (1993) (jury could properly find that police officer was “engaged in the performance of his duty” while responding in a neighboring town pursuant to a mutual aid agreement under G.L. c. 40, § 8G); Commonwealth v. Francis, 24 Mass. App. Ct. 576, 577, 581, 511 N.E.2d 38, 40, 41-42 (1987) (similar statute, G.L. c. 127, § 38B, requires specific intent to strike a person known to be a correctional officer); Commonwealth v. Rosario, 13 Mass. App. Ct. 920, 920, 430 N.E.2d 866, 866 (1982) (defendant who inadvertently struck police officer while intending to strike someone else may only be convicted of lesser included offense of assault and battery).  See Commonwealth v. Sawyer, 142 Mass. 530, 533, 8 N.E. 422, 424 (1886); Commonwealth v. Kirby, 2 Cush. 577, 579 (1849).


4.Related offenses.   General Laws c. 127, § 38B sets forth the separate offense (which is not within the final jurisdiction of the District Court) of assault or assault and battery on a correctional officer.  General Laws c. 265, § 13F sets forth the separate offense of assault and battery on a mentally retarded person; a first offense is within the final jurisdiction of the District Court, though a subsequent offense is not.  General Laws c. 265, § 13I sets forth the separate offense of assault or assault and battery on an emergency medical technician or an ambulance operator or ambulance attendant, while treating or transporting a person in the line of duty.   Among the offenses in G.L. c. 265, § 13J are: (1) assault and battery on a child under 14 causing bodily injury (which is within the final jurisdiction of the District Court) and (2) assault and battery on a child under 14 causing substantial bodily injury (which is not).  There are separate aggravated forms of assault and battery if the victim is 60 years or older or is disabled, and the assault results in bodily injury (G.L. c. 265, § 13K[b]) or serious bodily injury (G.L. c. 265, § 13K[c]); both offenses are within the final jurisdiction of the District Court.


5. Medical testimony.  In a prosecution for assault and battery, medical testimony about the victim’s injuries is admissible to establish that the defendant’s assault on the victim was intentional and not accidental.  Commonwealth v. Gill, 37 Mass. App. Ct. 457, 463-464, 640 N.E.2d 798, 803 (1994).


6.Transferred intent.  An instruction on transferred intent indicates that the Commonwealth need only prove intent as to one of the intended victims and does not have to prove intent specifically directed at each of the actual victims.  Commonwealth v. Melton, 436 Mass. 291, 299 n.11, 763 N.E.2d 1092, 1099 n.11 (2002).  “It is a familiar rule that one who shoots, intending to hit A., and accidentally hits and injures B., is liable for an assault and battery on B.”  Commonwealth v. Hawkins, 157 Mass. 551, 553, 32 N.E. 862, 863 (1893).  Accord, Commonwealth v. Drumgold, 423 Mass. 230, 259, 668 N.E.2d 300, 319 (1996); Commonwealth v. Pitts, 403 Mass. 665, 668-669, 532 N.E.2d 34, 36 (1989); Commonwealth v. Puleio, 394 Mass. 101, 109-110, 474 N.E.2d 1078, 1083-1084 (1985); Commonwealth v. Ely, 388 Mass. 69, 76 n.13, 544 N.E.2d 1276, 1281 n.13 (1983).


7.Statement of reasons required if imprisonment not imposed.  A jury session judge sentencing for this or one of the other crimes against persons found in G.L. c. 265 who does not impose a sentence of incarceration “shall include in the record of the case specific reasons for not imposing a sentence of imprisonment,” which shall be a public record.  G.L. c. 265, § 41.


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Understand the law: In Massachusetts an Assault and Battery has a very simple and broad definition: any touching done without the consent of the victim or any touching that could have caused physical harm. Know your rights: Just because the law is broad and you can be charged, does not mean that the prosecution can prove or even prosecute your case.

More often than for any other crime, charges of assault and battery may be dismissed for the lack of a victim or witness to prosecute. Your spouse may claim the “spousal privilege” allowing them to choose not to testify against you. The alleged victim may refuse to testify based upon the victim’s own Fifth Amendment right to remain silent to avoid self incrimination. You may have acted in self defense, defense of others, or defense of property. But, the prosecution will not typically dismiss your case unless you are represented by an experienced and zealous attorney.

Know your rights. At the Law Office of Michael Patrick Murray, P.C., we provide aggressive criminal defense for people accused of Assault and Battery including Domestic Assault & Battery, Indecent Assault & Battery and Assault & Battery with a Dangerous Weapon. I have effectively defended the rights of clients throughout Massachusetts for 18 years.


Call me now at: (508) 393-4162.


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*Since December 2008. Counsel does not guarantee the same or similar outcome in your case.*