An "attempt" type simple assault requires the prosecution to prove the accused had a
specific intent to inflict bodily harm and that the accused made an act which amounted to more than
mere preparation and apparently tended to bring about the intended bodily harm. The key here is that
criminal liability is not based on how the victim perceives the incident but is, rather, based upon what
the perpetrator intends to do. Accordingly, an attempt type simple assault may be committed even
though the victim had no knowledge of the incident at the time.
For example, if PVT Doe intends to hit PVT Roe, but swings and misses PVT Roe's
head, PVT Doe has committed a simple assault by attempt. It is not necessary that PVT Roe actually
see the fist coming in order for PVT Doe to be convicted of simple assault by attempt.
B. Assault consummated by a battery.
A battery is an assault in which the attempt or offer to do bodily harm is consummated, or
completed, by the infliction of that harm. Part IV, MCM 1984, Para 54(c) (2). In other words, a battery
is basically the unlawful application of force to another. The basic elements of assault consummated by
a battery are:
1. That the accused did bodily harm to a certain person; and
2. That the bodily harm was done with unlawful force or violence.
In order to constitute bodily harm in an assault, any harmful or offensive touching will
suffice. This is true even if the physical contact inflicts no pain and leaves no marks. Under Article
128, UCMJ, it may be a battery to spit upon another, to push a third person against another, or to set a
dog at another which bites the person. Part IV, MCM 1984, para 54(c) (2) (c). The force which is
applied in a battery may be applied directly by pushing a person, or indirectly by inflicting bodily injury
on a person through striking the horse upon which the person is riding. Part IV, MCM 1984, para 54(c)
(2) (b).
Assaults are characterized by the application, or attempted application, of unlawful force or
violence to another. No lawful application of force to the person of another is a battery. Certain
individuals may be justified in touching others even without their permission. One example of this
would be where military police break up a fight by pulling the participants away from each other. In
such a situation, the military police would be taking reasonable action to perform their duty. Similar, it
is not considered a battery to touch another to attract the other's attention or to prevent injury. Part IV,
MCM 1984, Para 54(c) (2) (3). United States v. Henley, 9 MJ 780 (AFCMR 1980).
For example, PVT Doe slaps PVT Roe in the face causing a bruise to his cheek. This would
be an assault consummated by a battery.
MP1019
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