Would you agree with defendant in the following case?A woman sued a former boyfriend, seeking the return of personal property. The lawyer represneting the boyfriend stated that a judgment against...

Would you agree with defendant in the following case?

A woman sued a former boyfriend, seeking the return of personal property. The lawyer represneting the boyfriend stated that a judgment against the boyfriend would be no good, because she didn't know where he was living. The woman poked the attorney in the shoulder, stating that she did infact know where he was living. The police observed the incident and the girlfriend was charged with simple assault. She argued that the4 statute was to broad and would make a simple pat on the back an assault.

See State v. Burke, 897A.2d 996 (N.H. 2006)

Asked on by surfer3

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larrygates's profile pic

larrygates | College Teacher | (Level 1) Educator Emeritus

Posted on

Sorry, the girlfriend loses this one. Any unfriendly or hostile touching of another person is technically a battery, although the distinction between assault and battery here is probably irrelevant. Under most state statutes, the girlfriend would be guilty of simple assault. Any intentional contact with another person's body without that person's consent constitutes an assault. She had no right to poke the lawyer, and obviously did so in a hostile manner. Rather than argue that the statute is too broad, she should have argued that the injury to the lawyer was "de minimus," that is minimal, if at all. That would perhaps lessen any penalty; still she has met the classic definition of a simple assault and the arrest would stand.

pohnpei397's profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

The answer to this depends on what question you are asking.  If you are asking if the statute is too broad, we would have to know the wording of the statute in question to judge.  If, however, you are asking if the woman's action constituted an assault, the answer is clearly no.

Let us look at the definition of assault from the link below.  The link says that

Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim.

None of these elements appears to be present in this case.  First of all, the woman did not intend to cause the lawyer to be afraid.  Second, the contact was not (depending on what contact you are calling a "poke") harmful or offensive.  Finally, the contact should not have caused any fear in the "victim."  The lawyer would surely have known that the woman was not going to be able to physically harm him.

Therefore, this contact is clearly not an assault.  It might be a battery, but it is definitely not an assault.

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