By Stephen G. Cobb, Board Certified Criminal Trial Law Specialist
One of the most frustrating things for a specialist in criminal trial law is the use of inaccurate language. This frustration is due to the fact that such language causes confusion. For example, domestic assault and battery is a common phraseology that confuses people because you never hear domestic violence assault separated from domestic violence battery charges. They are not the same thing.
Let’s examine the elements the prosecution must prove in trial for each charge.
Under Florida criminal law statute section 784.011 and Florida Standard Jury Instruction 8.1, there are 3 elements to an assault charge, domestic or not:
- (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
- At the time, (defendant) appeared to have the ability to carry out the threat.
- The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
In short, an intentional threat + apparent ability to carry threat out + a “well founded” fear that the violence threatened is “about to take place.” Let’s now examine the elements of a battery:
- (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.
- (Defendant) intentionally caused bodily harm to (victim).
As you can see from the two examples, domestic assault has three elements and domestic battery has two. There are also other factors to consider: case law.
Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).
An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.
The above case answers a question: what happens if someone throws an object at someone else and the free flying object hits the other party? The answer is clear: it’s a domestic violence battery.
The next example is most commonly involved with cases where a vehicle strikes another one:
Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001).
A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]
Since we are discussing the differences between domestic violence assault versus domestic violence battery, note that the assault statute and jury instructions do not cover this “domestic” element. This is how this element is determined:
“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
“Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.
As you can see, this definition of “family” or “dating relationship” is very broad when it comes to domestic assault or battery charges.
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