Assault and battery are separate criminal offenses in Nevada. Assault means intentionally making another person feel that he/she is about to be physically harmed. Battery is intentionally harming someone physically.
To prove that a Nevada assault crime occurred, the prosecution must show that:
the suspect had intent to commit the assault, and
the alleged victim was aware of the assault while it was happening1
To prove that a Nevada battery crime occurred, the prosecution must show that:
the suspect had an intent to commit the battery, and
the suspect used unlawful force on someone else's body2
These key elements of unlawful force, intent, and awareness are discussed in detail just below. Notice that an assault or battery does not need to result in physical injuries for someone to be convicted of it in Nevada.
a) Unlawful force on someone's body
One way that assault and battery are different under Nevada law is that assault does not require physical contact, while battery does. For example,
Jim is behaving disruptively at a Reno casino, so Sam the security guard asks Jim to leave. Offended, Jim holds up his fist to strike Sam. Sam ducks and calls the Las Vegas police to arrest Jim.
In this case, the Reno prosecutor might argue that Jim committed an assault on Sam. This is because Jim intentionally made Sam believe he was in harm's way and was about to be physically hurt. Since Jim did not make physical contact with Sam, however, Jim did not commit battery at this Reno casino.
Although most batteries arise out of physical brawls, batteries can also include situations where the physical contact is less direct. For example,
Jim sees Sam sipping a beer at a Carson City NV pool hall, and Jim slips a sleeping pill into Sam's beer.
Here Jim may not have hit or thrown something at Sam, but he still used unlawful force in the form of the sleeping pill on Sam. Therefore, the prosecutors might argue that Jim committed a battery crime.
Furthermore, under Nevada law, an action does not necessarily need to be violent in nature to qualify as a battery crime. For example,
Jim is sitting in a Mesquite NV nightclub when he grabs his cocktail waitress by the arm. After she screams, he immediately lets go of her, and there are no bruises or marks on her arm.
In this case, the Mesquite prosecutor will argue that Jim committed battery on the waitress even though she was not hurt by the incident. The fact he unlawfully touched her is technically sufficient for the state to press charges. In reality though, trivial cases like these probably would not be prosecuted.
In some situations, assaults can be accomplished with words rather than actions. For example,
Jim has left the men's room in a Boulder City restaurant when he sees that his seat at the bar has been taken by Sam. Jim goes to Sam, stares at him meanly and says, "Listen up, jerk. If you do not get out of that seat in one second, you can be damned sure that you will be limping out of here in two!" Sam immediately finds another seat.
In this case, the prosecution might argue that Jim committed an assault against Sam. This is because his "fighting words" put Sam in reasonable apprehension of being immediately harmed. In reality though, it is rare for Nevada to prosecute assault cases involving only verbal threats. Obviously, verbal threats can never constitute a Nevada battery offense because there is no physical contact.
In Nevada, both assault and battery are "intent crimes." However, that does not mean you have to intend to harm someone to commit an assault or battery:
If you are charged with assault in Nevada, the D.A. has to prove to the court that you intended to scare someone into thinking that they were in immediate physical harm. For example,
Jim is in line at a dance club in Laughlin, and the bouncer is giving him trouble about getting in. Frustrated, Jim assumes a karate stance and yells at the bouncer, "Let me in right now or you will be sorry!"
In this case, the prosecution might argue that Jim committed an assault crime against the Laughlin bouncer. This is because he intended to scare the bouncer with the threat of immediate physical force.
Even if Jim had no intention of actually hitting the bouncer, it might still qualify as an assault if the bouncer reasonably believed that Jim would follow through with his threat. To commit an assault crime in Nevada, you do not have to mean to harm someone; you just have to intend to make someone think you are about to harm him/her.
Like assault, battery requires intent. If you are charged with battery, the prosecution will have to prove to the court that you intended to use unlawful force on someone else's body. For example,
Jim is at a Las Vegas bar when he throws a beer bottle into a group of people hogging the jukebox. The beer bottle hits Sam on the head.
In this case, the Clark County D.A. might argue that Jim committed a Las Vegas battery crime on Sam because Jim's intentional action of throwing the can harmed Sam. The fact Jim did not intend to hit Sam, in particular, may not help Jim's case. That Jim purposefully acted in a way that was likely to physically hurt someone may be sufficient to prove battery.
Another difference between assault and battery under Nevada law has to do with the level of awareness required by the alleged victim. If you are charged with assault, the prosecution has to prove that the victim was aware he/she was being assaulted at the time. For example,
Jim finds Sam in a Summerlin bar sleeping at the counter. To impress his friends, Jim pretends to whip Sam with a belt, missing Sam's body by barely an inch. Sam remains asleep.
In this case, Jim did not commit a Nevada assault offense because Sam, being asleep, had no awareness of Jim's actions. Even if someone told Sam afterward that Jim whipped his belt at him, the D.A. still could not press charges because Sam was not aware of the assault at the time it was happening.
Had Sam suddenly awoken when Jim's belt was flying towards him, then assault charges could apply because Sam would have been in reasonable apprehension of being hurt at any moment.
If you are charged with battery, on the other hand, the prosecution does not have to prove that the person allegedly battered was aware they were being battered. For example,
Jim finds Sam in a Green Valley bar dead drunk on the counter. To impress his friends, Jim pours Sam's beer on Sam's head. Being dead drunk, Sam does not notice. Sam wakes up hours later completely dry.
In this case, the prosecution would argue that Jim committed a Nevada battery crime because he used unlawful force against Sam by pouring the beer on his head. That Sam was completely unaware of what happened is not really a defense. This is why it is possible to be convicted of battery on babies, sleeping people, and people in comas despite their lack of awareness of what is happening.
To schedule a free consultation with our Las Vegas assault and battery attorneys, call us anytime at 702-DEFENSE (702-333-3673).
Read about possible defenses to Assault and Battery in Nevada.
Read about possible penalties for Assault and Battery in Nevada.
Or return to our Assault and Battery in Nevada main page here.
See our article assault with a deadly weapon in Nevada.
1 NRS 200.471 Assault: Definitions; penalties. 1. As used in this section: (a) “Assault” means: (1) Unlawfully attempting to use physical force against another person; or (2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.