ASSAULT

CONTENT

1. Introduction
2. Objectives
3. Main Content Definition

Type of Assault Elements of Assault Consent

1. Conclusion
2. Summary
3. Tutor Marked Assignment
4. References/Further Readings

        INTRODUCTION

Assault is about the second most prevalent offence in the crime statistics in Nigeria. It enjoys high reportability. Its dark figure also can be phenomenal especially domestic assault; and common assault. Because of its high toleration level only the aggravated form of assault are likely to be reported. It is somewhat strange that a crime of such magnitude and reportability has not been legally defined. But it is well known. In this unit we conclude the discourse of offences against person by attempting to explain the term assault and identify its elements and different forms.

OBJECTIVES

When you have studied this unit, you should be able to

1. explain the term “assault” aggravated assault
2. identify the elements of assault
3. different categories of assault
4. articulate the right to sanctity and the person and the extent of its violation
5. critique the crime of assault

MAIN CONTENT

Statutory provision for assault generally and assault on females in particular can be found in sections 24-30 of the Criminal Code. Assault  is derived form Latin ‘ad saltare’ meaning ‘to jump at’.

Definition

1. Etymologically, assault derives from latin word ‘ad saltare’ meaning ‘to jump at’
2. Meaning
   1. physical attack: when we say Njoku assaults Tagbo, we have a mental picture of Njoku attacking Tagbo by striking, pushing, stabbing
   2. technical meaning: in technical terms, this offence is ‘assault and battery’ connoting both physical contract and apprehension in the mind of the victim. Battery is the use of an degree of force against the body. It is battery for Emmanuel to kiss Chikama against her wish or without her
   3. In generic terms assault may be either assault (intentionally injuring another) or battery (other species of assault)
   4. Blacks Law Dictionary explain Assault as follows:
3. the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful offensive contact.
4. the act of putting another person in reasonable fears or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

• an attempt to commit battery, requiring the specific intent to cause physical injury

Aggravated Assault

There is no separate offence  of aggravated assault. Whenever it is used. It refers to assault accompanied by circumstatnces that make it more severe. Examples:

Assault occasioned by use of a deadly weapon, Assault coupled with intent to commit another crime.

Assault arising from unsuccessful murder, mayhem, rape, robbery, etc.

Statute

No statute defines or explains the term assault. The Criminal Code supply provides that any person who unlawfully assaults another is guilty of misdemenaous and is liable, if no greater punishment is provided to imprisonment for one year.

Assault is a wide term. It may be an unlawful attempt or offer to do with violence, any corporal hurt to the body of another. Setting a dog at a person; spitting at the face of another, merely pointing a gun at or trying to strike another or actually striking another are examples of assault.

Battery is a part of assault, being an injury or wrong done to the body of another in an angry, revengeful, rude or insolvent manner.

Types of Assault

Assault includes

1. Common Assault
2. Serious Assault
3. Assault Occasioning Harm
4. indecent Assaut on Females
5. Indecent Assault on Males
6. Assault with intent to commit unnatural offences
7. Assault with intent to steal
8. Assault with intent to conjoin action
9. Assault on persons protecting wrecks

a.) Common Assault: A misdemeanour, punishment imprisonment for one year. To give a conviction for it must be proved beyond reasonable doubt that

1. it is unlawful and without the consent of the person assaulted

1. there was:
   • movement (or words coupled with movement);
   • alarm
   • force (some force, not necessarily resulting in any wound or serious injury).

a.) Assault Occasioning harm: in this category of assault there is hurt or injury calculated to interfere with the health or comfort of the victim. The injury or hurt may not be of  permanent nature, or grievous, but it must be presented.

Assault, assault occasioning harm grievous bodily harm and wounding. All these are species of assault. What degree and seriuoness of harm or injury to the body.

Assault                                             Character of harm

Common assault                    no injury

Accasioning harm                       this hurt or injury (eg. more abrasion).

Grievous harm/Woundig more serious harm or injury: the skin must be broken, beyond more abrasion and capable of interfering seriously with the victim health or comfort.

Assault on Female/Male unlawful and indecent assault is a felony (if the victim is a male) and a misdemeanour (if the victim is a female). Punishment is imprisonment for 3 years if it is committed against a male and 2 years if it committed on a female. Example is touching another’s private part.

Consent is defence unless the female victim is under 16 years in age.

Element of Assault

You may run into trouble when you attempt to define “table” or an ‘Elephant”. But there is no doubt you can identify them at sight. So we shall do with assault which also defies statutory definition. What ar the features or elements of assault? Simply they are:

1. movement (not just mere words)
2. alarm
3. force

a.) Lawful Assault

As you already have seen certain assaults are not actionable because they are lawful, authorized justified or excusable.  Example  are assault

Self defence or in defence of property

The authority of the law eg. In the course of executing a sentence, court process warrant of court;

Accident;

Lawful game (eg. Football) except where one deliberately disregards the rules by reason of which assault results;

Surgical operation for patients benefits or in the case of an unborn child, for the preservation of its mother’s life;

Moderate chastisement for misconduct or disobedient or default in his duty;

A parent or guardian may reasonably chastise or council his child; A master may correct his servant or apprentice;

A master of a ship may correct any person on board his ship; A school master may exercise parental corrective power;

A person authorized to inflict correction (eg. Proper and fit person so appointed).

It is not moderate if a correction extends to wounding or grievous harm 

It is not justifiable if it is unreasonably in kind or in degree having regard to the victims age, physical and mental condition

Husbands chastisement of his wife

Custom:Custom allows a husband to chastise his wife by way of moderate correction.

Statute: the Penal Code section 55 provides for correction of a child, pupil, servant or wife in relation toa wife, it states

“Nothing is an offence which does not a mount to the infliction of  grievous hurt upon any person and which is done (a) by husband for the purpose of correcting his wife such husband and wife being subject of any native law or custom in which such correction is recognized lawful. See Criminal Code section 257-297.

Compare the following which are not assaultive: Making a loud noise to the discomfort of another;

Words, however harsh and provocative unaccompanied with any bodily gesture;

Consent with the body of person in a crowd or in the rush to catch a bus;

Touching of each of the in a narrow passage without violence or design to harm;

Patting one to draw his attention to lost and found article;

A person who consents to assault cannot complain that he/she is assaulted. Assault is unlawful only if it is without consent. Hence a person who goes to a barbing saloon to cut his/her hair cannot complain more so it the barber used reasonable skill.

b.) Actus Reus

The actus reus in assault is the expectation an unlawful created in the victim.

For battery, it is the force that has actually been applied.

c.) Mens rea.

Intention to apply force or course reasonable apprehension of immediate fear.

Intention may be direct or indirect (dolus eventualis). It connotes knowledge of unlawfulness where the charge is one of causing reasonable apprehension of fear, mens rea is knowledge that the conduct of the accursed would inspire such fear.

Causal link

The person who attempt to threatens to apply force must have actually or apparently a present ability to carry his attempt or threat into effect.

If Osita points a gun at Nkem, there appears to be a present ability to effect the purpose depending on the distance. That present ability is actual if the gun were loaded. It is apparent if it were unloaded  and Nkem does not know it was unloaded.

Activity

Consider the following situation

Question:

d.) Onyeka points a gun at Chukwu from behind

e.) Oforji applies unlawful force on Esther who was deep in sleep.

Can you say that Chukwu or Esther suffered any fear, or alarm? But remember, fear or alarm may not always be present

Fear may be heat, light, electric gas, colour or any other thing whatever, applied to such a degree as to cause injury or personal discomfort. What must be present is the expectation of application of unlawful force. Remember that assault comprises any bodily act or gesture coupled with threat or attempt of force.

Question

Whose expectation is the test of liability? Is it that of Chukwu or Esther. Which is subjective or that of a reasonable man which is objective?

Brady v Schatzel (1911)

S pointed a loaded gun at B, threatened to shoot him. In his evidence B said “I was not a bit scared”. The court found him guilty, aging that “if it was material that the person assaulted should be put in fear. It would make an assault not dependent upon the intention of the assailant but upon the question whether the party assaulted was courageous or timid person”.

Consider further examples of assault

Smoking and putting the smoke on another’s face

Fouling the air in the presence of another, causing that other personal discomfort

K frightens J who in trying to escape, injures himself. Notice, there was no direct force or battery. Rather the force was indirect. The basis of conviction is that J’s reation is reasonably foreseeable.

 Consent

The application of force by one person to another may be unlawful although it is done with the consent of the other person.

A person who consents to assault can not be heard to complain, if  he/she genuinely consents, but not otherwise. A consent may be invalid in the following cases;

consent by a child consent by a person of weak intellect who is incapable of understanding the nature of act to be done consent to assault of a nature likely to endanger human life or to amount to a breach of the peace consent by use of threats, intimidation, fraud (see R v. Clearance (1888)). Here fraud must relate to the nature and quality of the act or identity of the esculent or to some other matter.

B’s consent to intercourse with A who misleads her to believing that he was single or free from disease is an invalid consent.

As a rule, consent would vitiate assault if Romeo kisses Juliet with her consent she cannot complain that the kill was aggressive. One who goes to the barber’s saloon for a shave cannot complain that his/her chair has been cut where it was done with reasonable skill.

Conversely consent of one or other to prize-fight tantamount to no consent.

 CONCLUSION

Assault and battery are actionable both in civil and criminal law. They are both torts and crimes. They range from intentionally or reckeclessly causing another to apprehend immediate and unlawful personal violence

– to actually causing physical contact or harm. Depending on the degree or natue of harm. Assault may be common, or it may be occasion harm  or wound. The view has been expressed that the presence or absence of consent mayh be relevant where the definition of the offence charged is “assault” but not where it refers to the application of force without describing it as an assault. A genuine consent is a valid defence to a charge of assault.

 SUMMARY

Assault is an unlawful and intentional application of force directly or indirectly to the person of another or expectation that force is immediately to be applied to him/her. The elements of the offence are application of force or apprehension unlawfulness of such act and the intention to do the act common assault, assault occasioning harm to wounding. Ideally assaualt is an injury against the physical integrity of another. The injury may be direct (as where Chike throws a pebble at Kenedy hitting him) or indirect (as where Deji sets vicious Alsatian dog  on Abdullahi).

TUTOR MARKED ASSIGNENT

Discuss the criminal liability of parties in the following cases:

Duru threatens to shoot Kufo. He is armed with an object which turns out to be toy pistol. Kufo knows that what Duru brandished was a toy pistol.

REFERENCES/FURTHER READING

Jefferson , M G (2003), Criminal law 6^th Ed. Longman, London

Butler  T.  and Garsia M:     (1969),    Archbold, Pleading, Evidence and Practice, Sweet and Maxwell, London.

Madarikan C and Agada T, (1974) Brett and Mclean’s: The Criminal Law and Procedure of the Six Southern States of Nigeria, Sweet and Maxwell.

Ormord  D  (2005),  Smith  and  Hogan Criminal Law.      11^th Ed . oxford University , Press ,London

Molan M (2003) Criminal law 4^th Ed . Old Bailey Press, London