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VOLUME 7 - CHAPTER 77
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77.9 Battery

    77.9.4 Battery: Defenses And Defense Theories

    77.9.4.1 Consent As Defense To Battery During Athletic Contest
    77.9.4.2 Battery: Good Faith Belief In Consent As Defense Theory
    77.9.4.3 Battery: Accident As Defense Theory
    77.9.4.4 Battery: Defense Theory That Victim Suffered No Physical Injury O Emotional Distress
    77.9.4.5 Battery: Lack Of Knowledge As Defense Theory To Battery Based On Criminal Negligence
    77.9.4.6 Battery: Self Defense
    77.9.4.7 Battery: Battered Person Syndrome
    77.9.4.8 Battery: Additional Defenses And Defense Theories

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    77.9.4.1    Consent As Defense To Battery During Athletic Contest

    See FORECITE National™ 252.6.5.1 [Assault: Consent To Bodily Injury -- Athletic Contest].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

See also generally, FORECITE National™ 305.3.10 [Consent].

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    77.9.4.2    Battery: Good Faith Belief In Consent As Defense Theory

RATIONALE: Without a defense theory instruction the jury may not understand that an honest belief in consent can negate a charge of battery or the jury may improperly assume that the defendant has the burden of proving consent as an affirmative defense.

POINTS AND AUTHORITIES: Consent has been recognized as either an element of or a defense to battery. (See e.g., Commonwealth v. Burke (MA 1983) 457 NE2d 622, 625 [for non harmful battery, lack of consent is an element]; King v. State (MD 1977) 373 A2d 292, 298 [consent is absolute defense to crime of battery]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.11.)

    Hence, the defendant's good faith belief in consent is a valid defense theory. (See e.g. People v. Sanchez (CA 1978) 83 CA3d Supp 1, 3 [147 CR 850]; see also People v. Mayberry (CA 1975) 15 C3d 143, 157, [125 CR 745].) Under such a theory the defendant is "only required to raise a reasonable doubt as to whether he had ... [a reasonable and bona fide belief in consent]." [Emphasis by Sanchez court.] (Sanchez, 83 CA3d at Supp 4.)

    Accordingly, unless the jurisdictional construction is to the contrary, the burden of proof should remain with the prosecution. (See generally FORECITE National™ 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

See also generally, FORECITE National™ 305.3.10 [Consent].

SAMPLE INSTRUCTION:

    In the crime of battery, criminal intent must exist at the time of the commission of the ___________ [crime charged]. There is no criminal intent if the defendant had an honest belief that the other person voluntarily consented to the touching.

    If after a consideration of all the evidence, you have a reasonable doubt that the defendant had criminal intent at the time of the touching, you must find [him] [her] not guilty of such crime.

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    77.9.4.3    Battery: Accident As Defense Theory

    See FORECITE National™ 252.2 [Accident].

    See FORECITE National™ 77.9.2.3 [Intentional Battery: Requirement Of Intent To Apply Unlawful Force].

    See FORECITE National™ 77.9.2.4 [Battery: Whether Criminal Negligence Requirement Is Sufficient].

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    77.9.4.4    Battery: Defense Theory That Victim Suffered No Physical Injury Or Emotional Distress

RATIONALE: If there is an issue as to whether the victim suffered injury a defense theory instruction explaining the requirement of emotional distress or physical injury may be appropriate.

POINTS AND AUTHORITIES: Battery does not require bodily harm. (See e.g., People v. Bradbury (CA 1907) 151 C 675, 676.) However, it is necessary that "the feelings of [the victim] are injured by the act." (Ibid; see also People v. Colantuono (CA 1994) 7 C4th 206, 214, n 4 [26 CR2d 908].) Hence, when the prosecution is relying upon a touching which did not result in bodily injury, the jury should be required to find that the victim's feelings were injured; i.e., the victim suffered "emotional distress." (See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.14-7.16, (2d Ed. 1986); Model Penal Code, section 211.1 [the touching must have been such that a reasonable person would have been offended].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

SAMPLE INSTRUCTION # 1:

    While any touching, however slight, may be a battery, the alleged victim must suffer either physical injury or emotional distress. If you have a reasonable doubt whether the victim suffered physical injury or emotional distress, you must give the defendant the benefit of that doubt and return a verdict of not guilty.

SAMPLE INSTRUCTION # 2 [Approach That The Act Must Be A Substantial Offense To Human Dignity]:

    To find defendant guilty of the crime of battery, the prosecution must prove beyond a reasonable doubt that:

    1.    The defendant caused substantial offense to the dignity of ___________ (name of alleged victim), and 

    2.    A reasonable person in ___________'s (name of alleged victim) situation would have been substantially offended by the defendant's conduct.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(B) inst. 5 [Physical Injury/Substantial Offense] page 125 (South Carolina CLE, 1994).]

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    77.9.4.5    Battery: Lack Of Knowledge As Defense Theory To Battery Based On Criminal Negligence

RATIONALE: Criminal negligence without subjective awareness of the risk should not be sufficient for conviction of battery. Therefore, a defense theory instruction may be appropriate so the jury understands the requirement of knowledge and that the defendant has no burden to prove lack of knowledge.

POINTS AND AUTHORITIES: See LaFave & Scott, Substantive Criminal Law (West, 1986) Vol.2, § 7.15, p. 305; see also Model Penal Code §211.1; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(B) inst. 4 [Simple Battery-Elements] (South Carolina CLE, 1994) page 124 [defendant required to know that victim would be violently struck or suffer a substantial offensive touching].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

SAMPLE INSTRUCTION:

    To convict the defendant of battery based on criminal negligence, the prosecution must prove beyond a reasonable doubt that the defendant knew of the risk that [his] [her] conduct would result in an unwanted, offensive touching of another.

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    77.9.4.6    Battery: Self Defense

    See FORECITE National™ 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

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    77.9.4.7    Battery: Battered Person Syndrome

    See FORECITE National™ 256.1 [Battered Person’s Syndrome].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

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    77.9.4.8    Battery: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)