Actual or Implied Consent: Defenses in Assault & Battery Cases

If you are charged with assault, battery, or both assault & battery, it is important to understand what the variety of defenses may be for your case. Because these intentional tort allegations can be brought about in both criminal as well as civil cases, building your defense appropriately is key to your optimal outcome. When consulting with legal counsel, the more educated you are in the aspects of defense, the greater your communication and knowledge about the civil and criminal action.

Under what is known as "common law", if you are charged with assault or battery, it is possible to use the defenses known as actual consent or implied consent. While actual consent is often used in professional or business settings, implied consent is generally applied to cases that involve the general population and is the most common form of defense.

When meeting with your attorney regarding a criminal or civil action for assault or battery, it is important to ask about the opportunities with regard to defense on either implied consent or actual consent. Because actual consent usually involves the proof of documents that supports consent to do bodily harm, as in a medical procedure, your attorney may opt to avoid this defense so as to maintain the credibility of your case.

As an alternative to actual consent, the best option for most assault or battery cases involved implied consent defense. By implied consent, you are essentially stating to the court that the actions that brought about your assault or battery of another individual were done so based on your perception that the individual wanted such action to be done. Strategically defending a case by examining conversations between you and your accuser, coupled with information regarding the situation in which the event occurred and even considering cultures and ethnic issues, your attorney can usually create a relatively sound defense using implied consent in an assault or battery case.

Another area of defense that is usually piggy-backed to the consent defense involves that of "reasonable force". If your attorney can prepare a defense in which you can present the case in such a way to prove that you were only using reasonable force to protect your body or your property, this can be perceived as an implied consent to use self-defense which may have resulted in assault or battery.

In any assault and battery case, there are extenuating circumstances within both parties that often leads to a very convoluted defense and strategy in managing both criminal and civil action. When discussing options with your attorney, ask about the issues involving implied consent, actual consent and the use of self defense by "reasonable force" as these are traditionally the best options to negate the effects of litigation in these intentional tort cases.