Debunking Misconceptions: Assault

“If you touch me, that’s assault.”

In the same vein as George Washington Duke goading Rocky Balboa at the end of Rocky V and exclaiming, “Touch me and I’ll sue you,” we often get questions about assault – namely, what does and does not constitute assault?

In The Queen v Phillips (1971) 45 ALJR 467, it was held that an act causing fear or apprehension of unlawful injury – without physical contact – can constitute assault.

So, if one person makes another person fearful or apprehensive of pending unlawful injury – that is assault. If, in this environment, the assaulter then touches, grabs, pushes or strikes the assaulted, this would constitute assault with ascending degrees of seriousness. A missed punch, kick or thrown object can also constitute assault. As can spitting on someone.

In New South Wales, the maximum penalty for assaulting someone and not causing injury is two years in prison (Crimes Act 1900 (NSW), s 61).

Other forms of physical interaction may be more severe but not amount to assault. Obviously, defence of yourself, property or another can be an appropriate defence. So, too, can necessity, where someone is faced with an immediate situation and acts proportionately to resolve it. Another example may be where your act is not voluntary because, say, you are asleep or it was an involuntary reaction.

If you were walking along a path and tripped, but then threw your hand out and firmly grabbed the person next to you to catch and prevent yourself from falling – what then?

Although someone can be found guilty of assault without touching someone, this does not mean that claimants can prosecute people for run-of-the-mill accidents and harmless interactions. It has to be proven beyond a reasonable doubt that a reasonable person would have experienced fear in that situation.

We are not entirely sure of the civil legislation and authority of the State of Pennsylvania, but if Rocky decked Duke in the state of New South Wales, he is obviously looking at a pretty serious assault charge.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.



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