Can you commit battery without commiting assault?

Can you please tell me what your qualification is to provide this reply? I am in a particular legal situation where this is relevant, and am researching information on battery, namely on an unconscious person. There was a fight between two people. One was knocked unconscious. The other proceeded to stomp on his head and kick and beat him while he was unconscious. There is a civil suit for battery being considered. But the victim’s attorney is refusing to take the case because he says no jury will find in favor of someone who may have started the fight (which is disputed) or at least was a mutual participant. In my conversation with this person who shared this, it is my view that the battery was entirely separate. Because at the point at which he was rendered unconscious, an assault by either party, had concluded. Also, it is merely battery because the victim was unconscious and no aprehension existed, which characterizes assault.

Do you have professional or personal experience that prompted your reply? I could really use some help finding some answers here. Feel free to IM me or email me if you do not care to reply here.

Moderator Note

This was originally posted to a GQ thread from 2006. Since this post involves a real world legal issue, I have separated it from the thread and have moved it to IMHO.

The original thread referenced may be found here:

“Merely a battery” is where you’re missing the point. Battery can be (as in this case) more serious than the related assault. The lawyers are probably declining the case because of problems they perceive in proving what happened, gather than any issues with the extent of the assault

To answer the question in the OP title, and keeping out any issues of an attorney being willing to take the case or not, yes, battery without assault is possible.

In my state there is no battery. The word doesn’t exist in the statutes. Assault covers what would be called assault and battery in other states. There are just various grades within the assault statute.

I’m other words your answer will be different from state to state.

I’m not sure what the question in the OP actually is. It seems like it’s more a matter of the lawyer declining to take the case because he thinks he can’t win rather than a question of any legal concept.

If I’ve read the OP correctly, he/she is asking Walloon for his professional background in support of the quoted passage.

Sadly, Walloon died around 2010, so will not be responding to the OP’s thread.

As I recall from law school fifty years ago, assault is the placing of another in immediate unqualified apprehension of unwanted touching. Battery is the unwanted touching of another, whether it is apprehended or not.

Defendant throws a brick at plaintiff but misses him, and plaintiff is ignorant of this until someone informs him. Under common law, no battery or assault as the apprehension of being touched and the actual touching are both missing. This is, as I say, common law and may well be modified by statutes.

Thank you, Professor Prosser. (Prosser on Torts, still in use, I think)

  1. For the OP, the difference between battery and assault is a technical detail and irrelevant.
  2. Since we don’t know the actual details and evidence, we have no idea if the lawyer is right about the case being unwinnable. It does seem to me that, regardless of who started the fight, stomping on someone’s head when they’re unconscious is not impossible to get a jury to find guilty; heck, even if the ‘victim’ started the fight, it’s no longer self-defense when the attacker is unconscious.
  3. If the OP thinks the attorney may be wrong, it’s fine to get a second opinion. But at that point, they should probably listen to the experts.