assault and battery在侵权法上和刑法上意义不一样。本文分析美国侵权法上的assault and battery。
assault 一般可以理解为：恐吓、威胁和企图侵犯。企图侵犯这个意义上，assault是battery的准备阶段。assault 需使受害人意识到紧迫侵害即将发生。
battery可以理解为：殴打和侵犯。battery不仅包括harmful contact,还包括offensive contact,例如冒犯他人的拥抱、亲吻、触碰裙角等，都可能构成battery。
battery的构成要件：
1.intent
2.harmful or offensive contact
包括身体的直接接触，以及通过物体与身体产生间接接触，比如手触碰到裙角，踢易拉罐碰到别人。
3.受害人无需意识到contact的发生。只要事实上发生了。
assault的构成要件：
1.intent
2.imminence
在受害人看来，所威胁的伤害是迫在眉睫的，并且侵权人目前有能力实施威胁。
3. no hostility
无需侵权人有伤害的恶意，单纯的开玩笑，比如拿玩具枪威胁他人开玩笑，导致他人误以为伤害即将发生，也可能构成assault.
4.P must aware
受害人必须意识到危险。
assault 和 battery的intent可以互相替换，assault 的intent加上其他要件，可能构成battery. battery的intent加上其他要件，可能构成assault.
比如，A想伤害B，但是打空了，让B产生恐惧，A构成assault.
A想挥拳吓唬B，但是打中了B，A构成battery.
assault 和 battery不是泾渭分明的，因为一个 battery里面，很可能包含着assault.
BATTERY
A. Definition: Battery is the intentional infliction of a harmful or offensive bodily contact. (Example: A intentionally punches B in the nose. A has committed battery.) [10]
B. Intent: It is not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive bodily contact; or (2) D intended to cause an imminent apprehension on P's part of a harmful or offensive bodily contact. [10]
Example 1: D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery.
Example 2: D shoots at P, intending to miss P, but also intending to make P think that P would be hit. D has the intent needed for battery (i.e., the "intent to commit an assault" suffices as the intent for battery).
C. Harmful or offensive contact: If the contact is "harmful" - i.e., it causes pain or bodily damage - this qualifies. But battery also covers contacts which are merely "offensive," i.e., damaging to a "reasonable sense of dignity." [10]
Example: D spits on P. Even if P is not "harmed" in the sense of being caused physical pain or physical injury, a battery has occurred because a person of average sensitivity in P's position would have her dignity offended.
D. P need not be aware: It is not necessary that P have actual awareness of the contact at the time it occurs. [11] (Example: D kisses P while she is asleep. D has committed a battery.)
ASSAULT
A. Definition: Assault is the intentional causing of an apprehension of harmful or offensive contact. [12]
Example: D, a bill collector, threatens to punch P in the face if P does not pay a bill immediately. Since D has intended to put P in imminent apprehension of a harmful bodily contact, this is assault, whether D intends to in fact hit P or not.
B. Intent: There are two different intents, either of which will suffice for assault:
1. Intent to create apprehension: First, D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through (e.g., D threatens to shoot P, but does not intend to actually shoot P); [12 - 13] or
2. Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact. (Example: D shoots a gun at P, trying to hit him. D hopes P won't see him, but P does. P is frightened, but the shot misses. This is assault.)
3. Summary: So D has the requisite intent for assault if D either "intends to commit an assault" or "intends to commit a battery." [12 - 13]
C. No hostility: It is not necessary that D bear malice towards P, or intend to harm her. (Example: D as a practical joke points a toy pistol at P, hoping that P will falsely think that P is about to be shot. D has one of the two alternative intents required for assault - the intent to put P in imminent apprehension of a harmful or offensive contact - so the fact that D does not desire to "harm" P is irrelevant.) [13]
D. "Words alone" rule: Ordinarily, words alone are not sufficient, by themselves, to give rise to an assault. Normally there must be some overt act - a physical act or gesture by D - before P can claim to have been assaulted. (Example: During an argument, D says to P "I'm gonna hit you in the face." This is probably not an assault, if D does not make any gesture like forming a fist or stepping towards P.) [13]
1. Special circumstances: However, the surrounding circumstances, or D's past acts, may occasionally make it reasonable for P to interpret D's words alone as creating the required apprehension of imminent contact. [13]
E. Imminence: It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat. [14] (Example: D threatens to shoot P, and leaves the room for the stated purpose of getting his revolver. D has not committed an assault on P.)
F. P unaware of danger: P must be aware of the threatened contact. [14]
G. Threat to third persons: P must have an apprehension that she herself will be subjected to a bodily contact. She may not recover for her apprehension that someone else will be so touched. (Example: P sees D raise a pistol at P's husband. D shoots and misses. P cannot recover for assault, because she did not fear a contact with her own body.) [15]
H. Conditional threat: Where D threatens the harm only if P does not obey D's demands, the existence of an assault depends on whether D had the legal right to compel P to perform the act in question. (Example: P, a burglar, breaks into D's house. D says, "If you don't get out, I'll throw you out." There is no assault on P, since D has the legl right to force P to leave.) [16]
参考文献：Emanuel contract outline.
