Protecting Yourself From Harm

Not Cut from the Same Cloth- Assault & Battery

Assault and battery are 2 separate types of what are called “intentional torts.” Yet they tend to be lumped together as the same thing. So, what is the real difference between assault and battery?

They’re not the same.

Well, looking at assault and battery, it makes sense how they are mistaken to be the same. For both assault and battery, an intentional act has to happen, where someone acts with a desire to either cause harmful/offensive conduct or knows that the consequence of their actions will likely happen. The contact mentioned in both claims also means an application of force to the victim, BUT it does not have to be physical contact.

Assault has 3 elements: the offender (1) acts; (2) intends to cause actual or imminent apprehension of harmful/offensive contact to the victim; and (3) the victim is actually put in imminent apprehension of that. Imminent apprehension means the victim’s reasonable belief that the offender’s act will cause imminent harmful or offensive contact. Examples of assault include threatening to hurt someone, pointing a weapon at someone as a “joke,” and swinging at someone even if no contact occurs.

Meanwhile battery has 4 elements: the offender (1) acts; (2) intends to cause contact with the victim; (3) their contact with the victim is harmful or offensive; and (4) the contact causes the victim to suffer a contact that is harmful or offensive. Examples of battery include punching or slapping someone, intentionally spilling a hot liquid on them, and throwing an object that makes contact with them.

So the difference between assault and battery lies in the fact that assault involves the threat of harmful or offensive contact, while battery actually involves infliction of harmful or offensive contact.

Switching Gears… Looking at Privacy of Invasion by Intrusion

A different – but maybe overlapping kind of harm – is caused by an invasion of privacy.

What is Privacy of Invasion?

Privacy of invasion has 4 types:

1. unreasonable intrusion upon the seclusion of another
2. appropriation of another’s name or likeness
3. unreasonable publicity given to one’s private life
4. publicity that normally places another in a false light before the public

Here, I’ll focus on the first type – which is invasion of privacy by intrusion. This involves interference with a victim’s solitude, seclusion, or private affairs. The interreference can happen in multiple forms such as an unauthorized entry to the victim’s home. repeated hounding and harassment, electronic eavesdropping, unauthorized opening of their mail, or examination of a private bank account.

Steps to Take if the Invasion of Privacy by Intrusion Continues.

Before making a claim, you can write a cease-and-desist letter. A cease-and-desist letter is an informal injunction sent to an offender that details the alleged misconduct and demands that it stop. The letter also serves as notice that legal action may be taken if the misconduct continues. However, a cease-and-desist letter does not have any formal legal effect and is not binding. It’s intended to warn.

A cease-and-desist letter usually has these components:

• a clear statement dictating the misconduct you want stopped
• list of the dates the misconduct occurred
• warning of further legal action if the misconduct continues
• a time limit to comply before legal action ensues

If a cease-and-desist letter is not effective, then an invasion of privacy by intrusion lawsuit can be filed. It must be based on the principle that the offender has invaded a victim’s privacy by unreasonably intruding upon their seclusion. The offender’s interference with the victim’s seclusion is of a kind that would be highly offensive to an “ordinary reasonable person.” So the lawsuit would fail if it can be found that the offender did not actually delve into the victim’s matters – or if the matters were already public or known.

Then proving by a preponderance of the evidence, the victim’s claim must satisfy 4 elements:

1. the offender unauthorized and intentionally intruded into the victim’s seclusion without permission;
2. the intrusion would be considered highly offensive to a reasonable person;
3. the matter on which the offender intruded was private; and
4. the intrusion was the cause of the victim’s injuries/damages

For Example:

Let’s see whether a claim of invasion of privacy by intrusion or assault should apply in a hypothetical situation.

A co-worker (offender) starts making rude comments and humiliating another employee (victim). The offender starts “getting in their face” when making such comments and has even made other fellow co-workers join in the conduct. The victim clearly finds the conduct offensive. She/he tries to avoid the offender in the office and being alone in a room with him/her. The offender has gotten multiple warnings to stop – but has only become more subtle and secret about it – adding gaslighting to the bad behavior. The victim feels that a cease-and-desist letter will not be effective, so what should she/he do?

In applying the invasion of privacy by intrusion elements, “getting in someone’s face” when harassing another is not considered an intrusion on seclusion. The offender may be intruding on the victim’s personal space, but it has not gone beyond that.

For instance, the offender makes these harassing comments in the office. The office is considered public because a substantial group of people, i.e. employees, would have access to it. If the offender had gone to the length of harassing the victim in their home instead or leaving harassing letters inside their home, then an invasion of privacy by intrusion claim could be viable. The intrusion would be considered highly offensive to a reasonable person if done within their private home.

But – the elements of an assault claim are better satisfied. For instance, the offender’s harassment has caused an imminent apprehension of offensive contact in the victim. The victim believes that every time the offender sees the victim, he/she will try to harass her/him. Since the victim avoids being in the same vicinity as the offender, she/he is experiencing imminent apprehension of potential harassment by the offender whenever she/he encounters him/her.

Viviana Torres is a rising third-year law student at Seton Hall University School of Law, where she works as an interpreter for the Center for Social Justice. Viviana is also treasurer of LALSA at Seton Hall Law.