ASSAULT
Assault in criminal law is wider than in civil law, where assault is merely descriptive of psychological discomfort by an apprehension of unpermitted contact. Criminal assault includes assault simpliciter, battery, and unlawful detention.
Act 29, assault may be one of three things:
⦁ assault and battery
⦁ assault without actual battery; and
⦁ imprisonment – false imprisonment – SECTION 85(1)
Assault is lawful if it is justified on any of the grounds in Chapter 1 of Part II of the Act – Section 85(2)
The mens rea for assault is intentional conduct in the case of assault and battery, it must be with the intention of causing harm, pain, or fear, or annoyance to the person assaulted or exciting him to anger – sec 86(1). In the case of assault without actual battery, it must be intentionally putting the person assaulted in fear of an instant assault and battery – sec 87(1). In the case of imprisonment, it must be with the intention of detaining the person assaulted in a particular place –sec 88(1).
Since the actus reus is unpermitted contact, proof of consent may undermine the actus reus – the reason is that if the contact is permitted then more likely than not, nothing wrong has been done.
Assault and Battery
To constitute assault and battery it must be established by the prosecution that without the consent of the other person, and with the intention of causing harm, pain, or fear or annoyance to the other person or exciting him to anger, the accused forcibly touched that other person or caused any person, animal, or matter to touch that other person – Section 86(1). The contact may be direct or indirect through an involuntary agent.
DPP v K (A Minor)
In the course of a chemistry class, One boy went to the lavatory to wash some acid off his hand. He took with him, very foolishly, a boiling tube of concentrated acid. He wanted to test the reaction of the acid with toilet paper, but then he heard footsteps outside. In a panic, he poured the acid, or what remained of it, into the upturned nozzle of the hand drying machine in the lavatory and went back to the class. Another boy went to the lavatory to wash his hands. He turned on the dryer and the acid was injected into his face, leaving him permanently scarred. HELD: It was held that it was clear that the first boy knew full well that he had created a dangerous situation and the inescapable inference was that he decided to take the risk of someone using the machine before he could return and render it harmless or that he gave no thought to that risk
The contact must be intentional and this intentional direct contact or indirect contact through an involuntary agent must be with the intention of causing harm, fear, pain or annoyance or exciting to anger. Therefore, a forcible touch alone, without proof of intention on the part of the accused to cause harm, pain or fear or annoyance to the victim or exciting the victim to anger, cannot support a charge of assault and battery.
COMFORT v THE REPUBLIC
The complainants attended a spiritualist meeting which the first appellant had conducted at her house to exorcise evil spirits and that in the course of the meeting the first appellant, who is acknowledged by the group as a prophetess and was therefore the chief actress in the drama, had hit the head of the first complainant several times with a stick in her effort to exorcise Abena Frema of her evil spirit. The second complainant, went and held the stick and the second appellant hit him on the chest and the first appellant hit him on the head. The appellant argued that she was in a trance at the time when she hit her and as such, had no knowledge of what was going on. HELD: The court held that the victim consented to his beating up thus the offence of assault and battery is not made up. Since she did not raise an objection to that which she voluntarily consented to then the offence of assault and battery is not made up.
The consent of the victim to an assault will inure to the benefit of the perpetrator if it is transient and trifling. The consent of the victim to an assault will inure to the benefit of the perpetrator if it is transient and trifling. Section 42(b), R v Donovan.
However, it is a sufficient defense to a charge of assault that the accused and the victim were engaged in a game or sport that is authorized by law and is conducted in a way not to pose any serious danger to life. Thus, if the game or sport is dangerous to life there can be no defense to any act of assault involving grievous harm on the grounds of consent. R v Coney
The general rule set out in sec 86(1) is qualified by or subject to the provisions in section 86(2). Therefore, where consent has been obtained by deceit, an intention to assault will be inferred, to render the act a criminal assault. Section 86(2)(a).
A person who is insensible or unconscious or lacks the capacity to give consent will be deemed to be a victim of assault, in the circumstance. Section 86(2)(b).
The slightest touch suffices for an assault and battery, if the requisite intention is established. Section 86(2)(c).
A person is touched if her body is touched, or if any clothes or other thing in contact with her body or with the clothes upon her body are or is touched, although her body is not actually touched. Section 86(2)(d). Therefore, the mere fact of causing damage to the complainant’s skirt or blouse or trousers or shirt is sufficient to support a charge of assault and battery. The rationale is that clothes are so intimately connected with the wearer that offensive conduct against clothes is likely to be taken as an affront to the wearer.
With respect to the question of intent, a person will be held liable not only for intentionally causing harm, pain or fear, or annoyance by the force or manner of the touch itself, but also for forcibly exposing the victim or causing the victim to be exposed, to harm, pain, fear, or annoyance from any other cause. Section 86(2)(e).
Assault without Actual Battery
A person commits an assault without actual battery on another person, if by an act apparently done in commencement of an assault and battery, he intentionally puts the other person in fear of an instant assault and battery – Section 87(1). The essence of the offence is that by his act or conduct the accused person intentionally puts the other person in present fear of assault and battery. REPUBLIC v BRUCE-KONUAH.
From Section 87(2)(b), a person can make an assault without actual battery by moving, or causing any person, animal or matter to move, towards another person, although he, or such person, animal, or matter, is not yet within such a distance from the other person as that an assault and battery can be made.
ILLUSTRATION
A. at a distance of 10 yards from B. runs at B., with the aim of apparent intention of striking him, and intending to put B. in fear of an immediate beating. Here A. is guilty of an assault, although he never comes within reach of B.
In a case of assault without actual battery, the apprehension of an instant assault and battery must be reasonable. It must be apparent to the other person that the accused has the ability or means to carry out the assault and battery. From Section 87(2)(a), it is not necessary that an actual assault and battery should be intended, or that the instruments or means by which the assault and battery is apparently intended to be made should be, or should by the person using them be believed to be, of such a kind or in such a condition as that an assault and battery could be made by means of them.
Also, an assault without actual battery can be made on a person although he can avoid actual assault and battery by retreating, or by consenting to do, or to abstain from doing, an act – Section 87(2)(c). This means that if a person does any act in commencement of an assault and battery on another person, the fact that the person utters words indicating that he can avoid actual battery does not unmake the assault.
Imprisonment
According to Section 88(1), a person imprisons another person if, intentionally and without the other person’s consent, he detains the other person in a particular place, of whatever extent or character and whether enclosed or not, or compels him to move or be carried in any particular direction.
This is subject to the circumstances enumerated in section 88(2).
Cruel Customs or Practices in Relation to Bereaved Spouses
Section 88A is intended to halt cruel customs like “kunayo”. Thus, any such practice which is cruel in nature will attract criminal sanctions if it amounts to assault and battery, assault without actual battery or imprisonment.