Charged With Assault, or Assault and Battery? Here Is the Difference

If you or someone you love has just been charged with assault or with assault and battery in Massachusetts, call an attorney now at 978-969-2890.

The paperwork names a charge, and the words can be confusing. Assault, assault and battery, aggravated, simple. Most people we hear from are less worried about the legal labels than about what this means for their job, their family, and who is going to find out. That is a normal reaction, and it is not a reason to wait.

If you are reading this for someone else — your son, your wife, your father — the same is true for you. Families call us as often as clients do, and the first conversation is free either way.

Here is what separates the two charges, why it matters, and what to do now.

Key Information: What You Need to Know

The difference is contact. An assault does not require touching anyone. An assault and battery requires a touching.

There is no separate “battery” charge in Massachusetts. The statute punishes “an assault” or “an assault and battery.” If there was a touching, the charge is assault and battery.

Nobody has to be hurt. An assault and battery can be charged when there was no injury at all. Any intentional, unwanted touching, however slight, can be enough.

The basic penalty is the same for both. Under G.L. c. 265, § 13A(a), simple assault and simple assault and battery each carry up to two and a half years in the house of correction or a fine of up to $1,000. Both are misdemeanors.

Some versions are felonies. A weapon, a serious injury, a pregnant alleged victim, a restraining order, or a prior domestic conviction can make the charge a felony. Our assault and battery defense page explains when that happens.

A charge is not a conviction. It is where the case starts, not where it has to end.

What Counts as an Assault in Massachusetts?

An assault can happen in two ways, and neither one requires touching anyone.

Attempting to use force. The first kind of assault is an attempt to use physical force on another person with the intent to cause bodily harm, where the attempt comes reasonably close to succeeding. A swing that misses is the classic example. The other person does not have to have been afraid, or even to have known it was happening.

Threatening bodily harm. The second kind is an act meant to make someone fear immediate bodily harm, which would make a reasonable person in that position recognize the risk, and which did make the other person recognize it. The other person does not have to have actually been afraid. And the prosecution does not have to prove the accused person could really have carried out the threat. Appearing able to is enough.

Words alone generally are not an assault. There usually has to be some action. Threatening words can still lead to a different charge, such as threatening to commit a crime, but that is a separate offense with its own rules.

What Counts as Assault and Battery?

An assault and battery is an assault that went further: there was a touching. The prosecution has to prove three things.

• There was a touching. Any physical contact, however slight, counts. It can be direct, like a push, or indirect, like throwing something that hits the person.
• The touching was intentional, meaning it was deliberate and not an accident.
• The touching was either likely to cause bodily harm, or was offensive. A touching is offensive when the other person did not consent to it.

That can include very minor contact. In Commonwealth v. Vieira, the Supreme Judicial Court described offensive touchings as including things like tickling, spitting on someone, or moving a person from one room to another.

Consent works differently depending on the kind of touching. In Commonwealth v. Burke, the Supreme Judicial Court explained that a touching likely to cause bodily harm is a battery whether or not the other person agreed to it. When the touching is not harmful, the prosecution has to prove the other person did not consent.

The prosecution does not have to prove anyone meant to hurt anyone. It has to prove the touching itself was intended.

There is also a second, less common form. An assault and battery can be charged where someone acted recklessly, knowing or having reason to know that what they were doing was very likely to cause substantial harm, and a person was actually injured. That injury has to be more than trifling. Being shaken up, or a moment of discomfort, is not enough for this form.

Why the Difference Matters

For the basic charges, the maximum penalty is the same. But the difference still matters in your case.

It changes what has to be proved. On an assault and battery charge, the prosecution has to prove a touching happened, that it was intended, and that it was harmful or unwanted. Whether there was any contact at all, and how it happened, is often exactly what is in dispute.

Every assault and battery includes an assault. The Supreme Judicial Court said exactly that in Burke: “Every battery includes an assault.” Because of that, a judge or jury that is not convinced a touching happened may still consider whether an assault did. That is one reason it matters to look carefully at the evidence for each part of the charge.

It shows on your record. The name of the charge follows the case, and how a case ends is what employers, licensing boards, and others will see later.

When Either Charge Becomes a Felony

In Massachusetts, a crime is a felony if it can be punished by time in state prison. Under G.L. c. 274, § 1, every other crime is a misdemeanor. Several things can move an assault or an assault and battery into felony territory.

A dangerous weapon. The same split between assault and assault and battery exists when a weapon is involved. Assault by means of a dangerous weapon, under G.L. c. 265, § 15B, carries up to five years in state prison. Assault and battery by means of a dangerous weapon, under § 15A, carries up to ten years in state prison, and more in aggravated cases.

Serious injury, pregnancy, or a court order. Under § 13A(b), the charge becomes a felony when it alleges serious bodily injury, an alleged victim the person knew or had reason to know was pregnant, or a restraining or no-contact order the person knew was in effect.

A prior domestic conviction. A second or subsequent domestic assault or assault and battery is a felony, as explained below.

For the full picture of penalties and defenses, see our assault and battery defense page.

Domestic Assault and Assault and Battery

When the alleged victim is a family or household member, the charge falls under G.L. c. 265, § 13M. That covers spouses and former spouses, people who have a child in common, and people who are or were in a substantive dating or engagement relationship.

The same difference applies: § 13M covers both an assault and an assault and battery. A first offense carries up to two and a half years in the house of correction or a fine of up to $5,000. A second or subsequent offense can be punished by up to five years in state prison, which makes it a felony. A conviction, or a continuance without a finding, also comes with a required batterer’s intervention program, unless the court finds good cause not to order one or the program finds the person unsuitable. Our domestic assault and battery page covers these cases in detail.

What to Do Right Now

• Don’t talk to police about what happened without a lawyer. You have the right to remain silent, and you should use it.
• Don’t contact the alleged victim or witnesses, even to apologize or explain.
• Write down what you remember while it is fresh: who was there, what was said, what happened first.
• Save anything that may help: texts, photos, video, and the names of people who saw what happened.
• Don’t post about it on social media.
• Follow every court order and condition of release exactly.

If you have been arrested, the next step is your arraignment. Arraignments begin at 9:00 a.m. The sooner an attorney is involved, the better prepared you are for it.

Frequently Asked Questions

Q: Is assault worse than assault and battery?

A: Not usually. For the basic charges, the maximum penalty is the same. Assault and battery means a touching is alleged; assault means it is not. Either can become a felony in the situations described above.

Q: Can I be charged with assault if I never touched anyone?

A: Yes. An assault does not require any contact. An attempt to use force, or an act that puts someone in fear of immediate harm, can be enough.

Q: Can I be charged with assault and battery if no one was hurt?

A: Yes. An intentional touching that the other person did not consent to can be enough, even with no injury. Whether it was intentional, and whether there was consent, are often central questions in these cases.

Q: Is a threatening text message an assault?

A: Generally not by itself. Words alone usually are not an assault without some action. But threats can be charged under other laws, and messages can become evidence in other ways. Talk to an attorney before responding to anything.

Q: Is assault and battery a felony?

A: Simple assault and battery is a misdemeanor. It becomes a felony with a dangerous weapon, serious bodily injury, a pregnant alleged victim, a known restraining order, or a prior domestic conviction. Our assault and battery defense page explains each one.

Q: Will I go to jail?

A: That depends on the charge, the facts, your record, and the judge. Nobody can promise you an outcome, and you should be wary of anyone who does. What helps is having an attorney who has looked closely at the evidence and prepared before you appear.

Contact Ernest Stone Today

If you or someone you love has been charged with assault or assault and battery, don’t wait. The decisions you make in the next few days matter, and you do not have to make them alone.

Call 978-969-2890 for a free consultation with a Massachusetts criminal defense attorney. If you are calling about someone in your family, that consultation is free too.

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We represent good people who had a really bad day.

H. Ernest Stone, Attorney PC

900 Cummings Center, Suite 321-U

Beverly, MA 01915

Phone: (978) 969-2890

Email: es@herneststone.com

We'll Get You Through the Storm

Criminal charges can feel overwhelming, but you don't have to face them alone. With more than 30 years of experience defending clients throughout Massachusetts, we know how to navigate the system and protect your rights. Every case is different, and we'll build a defense around yours.

Don't wait. Call 978-969-2890 today.