CRIMINAL REMEDIES –
COMMON-LAW ASSAULT AND BATTERY – MERE “UNCONSENTED TOUCHING” – HARMFUL INTENT
REQUIREMENT. A criminal case about
a kind of an offense that’s very often, and increasingly, invoked in family law
disputes today as the institution of marriage means less every day in the new
legal world (and as ambitious prosecutors remain eager for as many convictions
as possible, no matter how absurd and outrageous, to build a record of
accomplishments), provides a stern, no-nonsense lecture by the Court of
Appeals. Knowing better than to
invoke common sense or a sense of proportion, the Judges base their correction
of a Northern Virginia trial court on a strict reading of the existing law. (Just to keep everybody confused, Parish v. Commonwealth, 56 Va. App. 324,
693 S.E.2d 315 (2010), is printed next to the wrongful death case of a victim
named Parrish, but the one-R Parish case does not involve death nor anything
remotely approaching it.) Ms.
Parish, who was in a hurry, had words with a U.S. mailwoman delivering up and
down the street, on whose route Ms. Parish’s office was the last stop. The postlady ended up refusing to
deliver that mail because Ms. Parish, wanting faster service, had called her
names. As the mail carrier was
walking away, the customer grabbed her shoulder and spun her around to face
her. The trial judge convicted Ms.
Parish of assault and battery without proof of intent, because – you guessed it
– assault and battery “is any unconsented touching.” The words you invariably hear from Judges and Commonwealth’s
Attorneys, and lawyers in the nastier domestic relations cases, usually has
“however slight” thrown in. An
untruth Universally Acknowledged, but still just as wrong, as the Court of
Appeals patiently points out.
Assault and battery both require intent to harm, and in fact, both
require more. A touch does not
constitute a battery if it is justified or excused. Virginia Code §18.2-57 does not define assault or battery,
and the common law reigns here, as most attorneys know. And though linked by
that Code Section, they are not the same thing, either. The Court helpfully lays out all the
well-established common law, providing an excellent lesson in basic substantive
criminal law. Part of that lesson,
too, is that “words alone are never sufficient to constitute an assault.” So the husband who puts a hand on the
shoulder of his still-angry wife when hoping to end an argument cannot be
prosecuted – not lawfully … yet.
Though of course there are still plenty of ways she can still get him
out of the house and separated from the kids, with a little creativity.