The National Council on Identity Policy (NCIDP)

The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP...

"BATTERY" is the actual striking of any physical blow upon another person; that actual physical contact constitutes "battery". Modernly, "battery" is distinct from "violent assault". Historically, "battery" itself has generally not been a crime, or a relatively insignificant crime, (even when lethal in certain circumstances) unless it occurred in concert with, or as part of, any "violent assault".

See a brief but gripping Case Study that illustrates the legal meaning of this all too well (including the "Editor's Note") - Case Study: The Hate that Kills at Tom Waddell Health Center.

See batter y contrasted with violent assault - The Distinction of Battery.

When the legal definition of "violent assault" was expounded by the Queen's Bench in 1707, it very clearly enumerated that the legal concept of violent assault was and is the psychological trauma, fear or insecurity in the exercise of personal autonomy that the violent act caused an individual human being. (See: "The Heart of Violence and the Law").

"Battery" was and is no necessary element of "violent assault". Indeed, the victim of the violent assault found by the Queen's Bench was clearly not battered, and battery was never a part of that case.

Yet, to the court, it was a perfectly clear case of violent assault.

Throughout most of the legal history of the Common Law system carried on within the U.S., "battery" itself was of minimal legal significance, and the operation of justice revolved around providing individuals with defenses and recourse against violent assaults - up to and including the legal recourse of a victim of such violent assault to challenge the assailant to potentially mortal combat, or a duel. That is, the legal remedy for a violent assault could be a contest of mutual battery that could prove lethal to either or both participants, and this would be no crime even when fatal to either party to it.

It was recognized as a critical recourse to victims of violence, as a necessary means of empowering victims to seek justice and overcome the disempowerment that violence, particularly willful violence, intrinsically is. Effective justice is the most effective treatment for the injuries caused by violence. Depriving victims of easy access to effective justice often leaves those victims with lasting wounds of hurt and anger, and throughout history it has led to many lasting feuds, blood feuds or family feuds or clan feuds, and even major wars. The concept of a duel served to defuse such situations early, give the victim of violence easy access to a recourse of justice, and prevent the deepening of wounds left festering by injustice that was well known lead to more violence, feuds and wars.

As crude as it may now seem, it was substantially effective for those purposes. Indeed, through much of the history of duels practiced throughout the rise and fall of numerous religions, victory was often believed given by the gods or goddesses to the party that was in the right in the matter, and the matter was deemed to have been thus settled 'by the hand of God', as it may often be said. (Conversely, this same principle, extrapolated to a large scale, has also been behind and involved in most wars throughout history). However, the principle of duels clearly favored those with certain skills and physical prowess, and those lacking such skills and prowess were disparately denied justice under the dueling system.

Battery was legal in such a format because two parties were entering into a potentially lethal challenge by mutual consent, and the rules of the challenge were established, known and clear – meaning that there was no violent assault occurring within that challenge. If one party cheated in some fashion, then it would become a violent assault and, if the cheat proved lethal, murder. The lethal battery, then, enhanced the depth of wrong of the underlying violent assault, but itself was made wrong ONLY by its occurrence within the context of the violent assault.

In fact, in the case of murder, the utter finality of the violent assault, that is the extreme "mischief upon" or impairment of the victim's rightful autonomy, is the basic cause of the severity of murder as a crime: murder ends all present and future exercise of the autonomy of the victim; justice can never make the victim whole again and restore that rightful autonomy; and even the nature of the battery itself principally serves to indicate the severity of the violent assault inflicted by the perpetrator (torture induces terror, a facet of violent assault).

It is the principle that battery is largely insignificant as an act itself, absent the context of a violent assault, that allowed, and allows to this day, contact sports like boxing, rugby, football, hockey and others to be legal.

It wasn't until the 19^th Century that novel efforts began in ernest to ban such potentially lethal challenges, at that time principally duels by pistol. In the centuries prior to the ubiquity of pistols, swords or other handheld weapons were used in such fights, and were less likely to end in fatality. With handheld weapons, a fatal blow could be withheld while still recognized as a victory. The higher mortality rates related to pistol duels led to efforts to ban such duels. However, the need for this mechanism of justice continued to be recognized, and the use of pugilistic combat (boxing/hand-to-hand, essentially) began to replace duels as the commonly accepted practice. In this form, the legal resolution of a violent assault through a contest of battery continued to remain legal through much of the 20^th Century, and even to present many jurisdictions still recognize and accept this practice, if informally.

Despite these efforts to create public antipathy toward fatal duels, early 20^th Century candidate for U.S. President William Howard Taft accepted a challenge to a duel in 1908 in which he killed his opponent in a duel of hand-to-hand combat. Moreover, despite reports indicating that Taft killed his opponent after that opponent had been rendered unconscious, the reports of this lethal duel actually appeared to increase Taft's popularity and may have helped him get elected to the presidency. Such was the acceptability of a contest of battery as a means of resolution for violent assaults into the 20^th Century.

Modernly, public consciousness of the actual meaning of personal violence has faded, and the conceptual image of battery substituted in its place. As a result, understanding of the genesis of what is now often called "violence" is opaque and poorly understood by many. [See more on this at: The Heart of Violence and the Law]. Regain a fundamental understanding of "violence", however, and the fog begins to lift, the violence that begets violence becomes more visible, and ultimate escalation to violent assaults with battery that includes murders, gang violence, rapes and more, becomes more easily understood.

Share the unfortunate experience of significant violence accompanied by significant battery, [the NCIDP and Firewire News hope that you do not] and you might also come to personally recognize the relative insignificance of the battery itself. The fear that it might happen again, the terror, the nightmares, the flashbacks – all are the essence of violence, and are much more likely to stick in a victim's psyche, haunt that victim, than the memory of the physical pain that the battery causes. This, of course, is not stated as a universal truth, but it is the most common truth by far among survivors of violence that includes severe batteries. Even when the batteries leave lasting physical pain, it is not uncommon among survivors for those pains to serve as emotional reminders of the violence that came with the battery that caused those pains, much more than reminders of the physical experiences of the battery itself.

The National Council on Identity Policy does NOT advocate any resurrection of the practice of dueling as a mechanism for obtaining justice.

See batter y contrasted with violent assault - The Heart of Violence and the Law.

See a brief but gripping Case Study that illustrates the legal meaning of this all too well (including the "Editor's Note") - Case Study: The Hate that Kills at Tom Waddell Health Center.