Harry Hands sees Sally Shoulder. Harry likes Sally. He calls to her and she does not answer. Perhaps she is ignoring him. Perturbed, he walks up to her and taps her on the shoulder.

Did Harry break the law?

The answer is probably yes.

Under Massachusetts law, an assault is when you place someone in fear that they are about to be touched. The battery is when they are actually and intentionally touched and that touch is offensive to the touched person.

Harry could be found guilty of assault if Sally saw his touch coming and she testifies that it caused her to feel fear.

Harry could also be found guilty of battery by the fact that he went so far as to actually touch Sally, his touch was found to be intentional and Sally found that touch to be offensive.

Bingo. That is all the prosecution needs to show to prove the battery.

Harry has to have meant to tap Sally. If he had simply been walking up to her, tripped and his hand accidently touched her shoulder, then, at least under the criminal law, he would not have committed a battery.

“What if he meant to tap her but he did not know it would be offensive to her?”

Strictly speaking, that does not matter.

Realistically, police seldom charge someone for just tapping someone on the shoulder to get their attention, although they could.

The point here is that one needs not really “attack” someone to be charged with assault and battery.

I have handled many cases where a criminal charge results from two spouses having an argument.

Argument begins. Finally, Wife says, “That’s it! I am leaving you!” She walks to the door and opens it, intending to leave. Husband, however, does not want her to walk out. He wants to talk the situation out. So he grabs her by the arm and pulls her back into the apartment and closes the door.

“That’s a battery?”

Yes and it may even be and assault and battery irregardless of whether they are married.

Marriage has little to no relevance in pursiong a conviction for assault and battery in the Commonwealth.