Assault vs. Battery in Michigan: What Each Word Means

In Michigan law, a battery is an intended, unwanted touching, and an assault is an attempted battery or an act that would cause a reasonable person to fear an immediate battery.^[1][2] That means a person can be charged with assault when nobody was touched, and with assault and battery when nobody was hurt.^[2][4]

The assault statute, MCL 750.81, uses the phrase "assaults or assaults and batters" without defining either word.^[5] The definitions come from case law as restated in the Michigan Model Criminal Jury Instructions, which judges use to instruct juries.^[1] This page explains those definitions.

What is a battery?

The model instruction reads: "A battery is a forceful, violent, or offensive touching of the person or something closely connected with the person of another. The touching must have been intended by the defendant, that is, not accidental, and it must have been against [name complainant]'s will. It does not matter whether the touching caused an injury."^[1]

Four parts of that definition do most of the work.

• Forceful, violent, or offensive. The three words are alternatives. A touching that is offensive can be a battery without being violent.^[1]
• The person, or something closely connected with the person. The definition is not limited to contact with the body itself.^[1]
• Intended, not accidental. The touching must have been intended by the accused.^[1]
• Against the person's will. The definition is written around the other person's lack of consent, and the instruction's use note points courts to further instructions when consent or the nature of the touching is at issue.^[6]

The instructions also define "force and violence" for jurors as "any use of physical force against another person so as to harm or embarrass" that person.^[7]

What is an assault?

The instruction gives one sentence: "An assault is an attempt to commit a battery or an act that would cause a reasonable person to fear or apprehend an immediate battery."^[2] That sentence describes two different kinds of assault.

Attempted-battery assault

The first kind is an attempt to commit a battery.^[2] The touching does not have to be completed. What the prosecutor has to show is that the accused tried to commit a battery and intended to.^[3]

Apprehension assault

The second kind is an act that would cause a reasonable person to fear or apprehend an immediate battery.^[2] Two limits are built into the wording, and a further element applies to any assault without a battery:

• The standard is a reasonable person. The definition asks what the act would cause a reasonable person to fear or apprehend.^[2]
• The feared battery is an immediate one.^[2]
• For an assault without a battery, of either kind, the prosecutor has to prove as a separate element that the accused had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.^[8]

Whether spoken words by themselves can be charged, and which statutes cover threats made by phone or message, are separate questions covered in Are threats a crime in Michigan? and Is verbal or emotional abuse a crime?

Assault and battery side by side

Question	Assault	Battery
What is the act?	An attempt to commit a battery, or an act that would cause a reasonable person to fear or apprehend an immediate battery[2]	A forceful, violent, or offensive touching of the person or something closely connected with the person[1]
Is physical contact needed?	No[2]	Yes, a touching[1]
Is an injury needed?	No; an assault does not have to cause an actual injury[4]	No; it does not matter whether the touching caused an injury[1]
What intent is needed?	Intent to commit a battery or to make the person reasonably fear an immediate battery[3]	The touching must have been intended, not accidental[1]
Is there an ability element?	Yes: actual, apparent, or believed ability to commit a battery[8]	Not stated as a separate part of the battery definition[1]

What intent does the prosecutor have to prove?

The jury is told that the accused must have "intended either to commit a battery" on the complainant "or to make [the complainant] reasonably fear an immediate battery," and the instruction includes, in brackets, the sentence "An assault cannot happen by accident."^[3] The use note to the instruction adds that all assaults are specific intent crimes.^[3]

Two consequences follow.

First, accident is not something the accused has to prove. Where the accused says the conduct was accidental, the instruction on accident tells jurors that the prosecutor must prove beyond a reasonable doubt that the accused had the required intent.^[9] See Accident and lack of intent.

Second, intent follows the act even if the wrong person is affected. If the accused intended to assault one person but by mistake or accident assaulted another, the crime is the same as if the first person had actually been assaulted.^[10]

Voluntary intoxication is addressed in its own guide: Intoxication and domestic violence charges.

Why the statute says "assaults or assaults and batters"

MCL 750.81(1) applies to "a person who assaults or assaults and batters an individual," and the domestic subsection uses the same phrase.^[5][11] Either route satisfies the first element of domestic assault: the jury instruction asks whether the accused "[assaulted / assaulted and battered]" the complainant.^[12] The maximum for a first domestic offense is the same either way: 93 days in jail, a fine of $500, or both.^[11]

So in a Michigan domestic case the practical difference between the two words is about proof, not punishment. If there was a touching, the prosecutor can prove a battery. If there was not, the prosecutor can still proceed on one of the two forms of assault.^[2] The statute is walked through in Domestic assault: MCL 750.81 explained.

How injury, weapons, and intent change the charge

The basic definitions stay the same across Michigan's assault statutes. What changes is what is added to them.

• Serious or aggravated injury. Aggravated domestic assault adds a third element: that the assault caused a serious or aggravated injury.^[12] See Aggravated domestic assault.
• A dangerous weapon. Felonious assault is an assault committed with a dangerous weapon; contact and injury are not elements.^[13] See Felonious assault in a domestic setting.
• Strangulation or suffocation. Assault by strangulation or suffocation is a felony punishable by up to 10 years in prison, a fine of up to $5,000, or both.^[14] See Assault by strangulation.
• Intent to do great bodily harm. Assault with intent to do great bodily harm less than murder is a felony punishable by up to 10 years. Actual injury is not necessary for that charge either.^[15][16]

What people get wrong

"Assault means hitting someone." In everyday speech it does. In Michigan law the hit is the battery, and the assault can be complete without it.^[1][2]

"No marks, no case." Injury is not part of the definition of assault or of battery.^[4] If there was an injury, the jury may consider it with the other evidence in deciding whether there was an assault.^[4] See Can you be charged without an injury?

"We were both fighting, so it is not assault." The battery definition turns on whether the touching was against the other person's will.^[1] How that applies when two people fight is covered in Mutual fighting and consent, and the separate law of justification is in Self-defense law in Michigan.

"The case law says X about assault." The definitions on this page are taken from the model jury instructions, which cite the Michigan Supreme Court's decision in People v Joeseype Johnson, 407 Mich 196 (1979).^[3] The instructions are the form in which those rules reach a jury, and they are updated from time to time, so anyone preparing for trial should read the current instruction itself.