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III. Overview of ElementsIntentionally Threaten to do bodily harm Have the ability to carry it outOf an imminent/immediate natureIV. Interests ProtectedPeace of mind, the ability to go about the world, to mind your own business, not having to flee, to protect peace of order, to protect people from fear – Anderson calls it “a big step forward in civilization.”V. Key Policy Arguments to DiscussHow close to consummation must a threat of contact be in order to constitute assault? What about extra sensitive plaintiffs? That pesky little intent issue is back yet again!Do we protect ALL threats to our peace of mind? Nope. That would be too much. We don’t want to over deter. This is the reasoning behind the immediate, able to carry out, etc. qualifiers that are in place.Why did the law take this step of going beyond battery? Anderson explains, could view assault as an attempted battery. Why do we want to act against attemps that aren’t successful? Deterrence. Also, a person who succeeds and a person who doesn’t should perhaps be punished equally, as they had the same amount of culpability. (But assault is not always an attempted battery that doesn’t succeed.)VI. Elements in Detail and the Issues they PresentA. IntentionallyIntentional conduct of some kind is required.Anderson says: “As long as the person feels threatened, there is assault. Doesn’t matter what the defendant’s intent was.”Similar to battery – they don’t have to have intent to harm. If they were “substantially certain” that the apprehension would/should occur, they are liable. Also, pranks totally count.Transferred intent still applies – if you intend to cause a battery but miss, or intend to assault someone else, you’re liable. Restatement (Second) of Torts § 32 – “plaintiff must prove that the defendant intended to cause apprehension of imminent harmful of offensive bodily contact or intended to cause harmful or offensive bodily contact.”B. ThreatenMany jurisdictions say that words alone cannot be an assault. This is prevent people being held liable for merely blowing off steam. However, words can constitute assault if “together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or 10
offensive contact with his person.” Restatement (Second) of Torts § 31. (reaching into pocket while saying “I have a gun and will shoot you.”). Similarly, words can also negate an assault (“I’mnot going to shoot you.).Actual contact or apprehension is required. Important: fear and apprehension are not always the same thing! The defendant doesn’t have to be afraid of the slap/hit/whatever he thinks is coming, just fear that it is going to come. Fear is not a requirement. Just apprehension.