What Constitutes a Legal Definition of Assault?
The legal definition of assault is very similar across most jurisdictions, but I’ll give you the statutory definitions of assault from both the Criminal Code of Canada and the Model Penal Code (United States).
Criminal Code of Canada s.265(1) – Everyone commits an assault who:
(a) intentionally applies force to another person directly or indirectly;
(b) directly or indirectly attempts or threatens by an act or an outspoken word to apply force to another person;
(c) while openly wearing or carrying a dangerous weapon or an offensive weapon or an imitation thereof, waves it about or passes it to any person.
Model Penal Code 211.1 – Simple assault. A person is guilty of assault if he:
- (1) attempts to cause or knowingly causes bodily injury to another;
- (2) negligently causes bodily injury to another by means of a deadly weapon; or
- (3) attempts to cause or purposely or knowingly causes other bodily injury to another with a deadly weapon .
As you can see, there is no mention of spitting in either definition. However, the use of bodily actions, like spitting, might fit within an overall definition of "assault".
It’s important to understand that different jurisdictions interpret the law differently. Under some laws, spitting on someone may be common assault, but in others it is aggravated assault (perhaps due to bodily fluids being the alleged weapon). In some instances, spitting on a police officer might also be considered assaulting a police officer. As a result, spitting on someone may result in very different legal repercussions, depending on the specific circumstances, as well as the specific laws in your jurisdiction.
Spitting and the Criminal Penalties
Spitting has been an issue long before it became a nuisance or offense to witnesses. There have been health codes established to prevent the spread of infection, but laws that seek to punish an individual for bodily fluids haven’t garnered much attention until recently. The HIV/AIDS epidemic has helped reveal the need to address this issue.
When someone is spit on, it isn’t typically considered an assault. Not only is spitting considered lowly, it is also both a crime and a contemptible act. To understand why this is, if it is, we will first look at where spitting itself falls on the law’s scale of offenses.
An "offense" in Texas, California & Florida is typically a misdemeanor, while a "crime" carries the possibility of a felony charge. Assaults with or without injury are typically treated as crimes, while infractions can be committed with or without malice. In other states such as Pennsylvania and Georgia, assault and battery can be either a misdemeanor or a felony, but the offenses are viewed differently in the eyes of the court.
If an offender causes bodily harm to another person, he or she can be charged with assault and battery. If there is no actual harm or injury, what can happen, then? Should that be viewed as an actual assault, and held in the same regard as a punch to the face?
The answer is yes. If someone spits on you, it should be taken at least as seriously as broken bones due to physical battery. A herpes infection is just as dangerous and could be just as harmful as broken bones or even death through broken bones. The heavy dose of bacteria and saliva can be harmful even when it doesn’t lead to herpes or another infection.
An assault, according to Tex. Penal Code Ann. Section 22.01, is committed when a person intentionally, knowingly, or recklessly causes or threatens to cause bodily injury to another. This means if you get spat at, the actor is guilty of assault if the she or he intended to inflict injury (in the form of spit) or knowingly did so (by allowing the spit to land on you). The use of saliva is considered offensive or provocative, and may be punished by a fine of up to $4,000 and up to a year in jail (Texas Penal Code Section 12.21).
In California, the use of spit in any form is often seen as a violation of Section 243. It is stated, "Except as provided in subdivision (b), any person who commits a battery is guilty of misdemeanor, and shall be punished by a fine not exceeding one thousand dollars ($1000), or imprisonment of six months in jail, or by both." This means if you spit in another person’s face, you could face fines, community service, or jail time.
In Florida, one can be charged with battery if he or she touches another person against their wishes and/or causes bodily harm. If you spit at someone, and they press charges, you could go to prison for up to five years and be fined a maximum of $5,000.
In most other states, if someone spits on someone else, he or she may be charged with simple assault. Simple assault typically requires that the offender is found guilty of engaging in behavior to do physical harm to, or unwanted physical contact with, or causing fear of harm to another person (Pennsylvania Crimes Code).
In Virginia, a person can be charged with assault if a person marries without qualifying to do so according to the law, and the act of marriage causes physical harm to another person or fear without physical harm. Battery, according to the Virginia legislature, "includes any touching of another person’s body without his or her consent, or any object intimately sticks into another."
In most states, a person could be charged with aggravated assault, which is an assault punctuated by the use of a deadly weapon. For instance, if someone uses a stick, rocky object, any dangerous weapon, or transfers bodily fluids during the assault, he or she may be charged with aggravated assault and battery, especially if it puts your life at risk.
If someone spits on you, you can press charges, and they would likely be viewed under aggravated assault or battery. This means that if you are spit on, depending on the severity of the damage it causes in terms of bodily harm or otherwise, the attacker can go to jail for up to fifteen years (including being charged as a violent felony) and be forced to pay a couple of thousands of dollars in fines, which may vary by state.
Case Law Examples: Precedents on Spitting Offenses
Whether or not to press charges in spitting cases can be tricky because you may not know the state laws and statutes. Complications arise with how rare these incidents are. If someone is rude or obnoxious, that does not necessarily result in criminal charges. People do spit on other people all the time and they get away with it.
In Commonwealth v. Robinson (1989), the Supreme Judicial Court of Massachusetts ruled that spitting was an assault with a deadly weapon. In that case, the defendant spat in the face of a police officer, who was trying to arrest him for solicitation of prostitution. The defendant claimed he was simply "demonstrating" the prohibition against spitting on police officers, as told by an undercover cop. The court found that Acts intended to humiliate, frighten, or annoy can be found to be assaults. Furthermore, the court ruled that contact with a person using the saliva of another human, could harm health or cause injury.
In Woatherley v. City of Lancaster(1995), the District Court of California faced a more serious charge. The plaintiff, an inmate, tried spitting blood and saliva at a guard. He was spitting tuberculosis-positive blood at the time. The court ruled that even though the sentences were unusual for a state penn, the action of spitting at another person, even with the intention of causing humiliation, was an assault in itself, regardless of the bodily injury that resulted. Tuberculosis was not a primary factor in this case because akin to HIV and AIDS, as the plaintiff argued, a prison guard can be tested for tuberculosis even after being spit on.
The Consequences of Spitting on Another Person
As with any crime, when you spit on someone in California you will likely be charged with a crime. When a person spits on another person, it is considered an assault or battery under California Penal Code section 243(c). If the attacking party intended to spit on their victim and did so, it can be preserved to be gross as required by California Penal Code section 1203.097. This would result in a fine and even jail time. Being convicted of a charge under spitting crime will get the attacking party, probation as a condition with a fine of not less than one thousand dollars or more than five thousand dollars. If the person sentenced to probation violates the terms of probation, he or she will then be committed to the county jail for a period of not less than 30 days and not more than 1 year.
A person that is convicted of unauthorized use of bodily fluids in California may be charged with a misdemeanor, which carries up to six months in the county jail. When a person spits or defecates their bodily fluids at another person as a threat to harm, they will be charged with a felony. Therefore this crime against another person is extremely serious.
Common Defenses for Spitting Offenses in Court
When faced with allegations of spitting, the intent of the accused is often central to the defense. Did the defendant spit purposely at the complainant out of hate or anger? Or was the spit an accident? For example: Mr. Jones is a pedestrian walking past Mr. Smith’s car. Maybe it’s rainy outside and Mr. Smith rolls up his window and the spit lands on Mr. Jones’ face. Mr. Smith knows whose face the spit landed on because he immediately turns to see the sidewalk and doesn’t see anyone there. Obviously, this is a clear indication that the allegedly menacing spitting was not intended at anyone.
Because of this, intent is key in these cases. If the spit accidentally hits someone during normal talking, coughing, laughing, or any other action where the spit would reasonably leave the mouth it is usually viewed as accidental and there is typically no malicious intent or criminal intent. But in cases where it is purposely done, the case can be treated similarly to other common law assault charges. The context of the situation is also taken into consideration. A good defense might be that the alleged victim was the provocateur. If the alleged victim uses a harsh word or some racist retort and the defendant responds with "I can’t hear you because you don’t have a full set of teeth," while the defendant was not trying to intentionally spit in the alleged victim’s face, the spittle managed to get out and a clearly derogatory comment in response to a racial remark could be seen as justifiable self-defense or possibly even assault . The defendant did not have to participate in the argument. To the contrary, some courts view intentionally spitting as battery even if the defendant does not intend to strike the alleged victim. So, a defendant cannot say, "I didn’t even mean to hit you because I was meaning to hit the car behind you." Here, the defense might be making the argument that there was no intent to harm or injure. The defendant should also be mindful of how they respond to the alleged spitting incident. If he commits a retaliatory act (intentionally or negligently) against the alleged victim or someone nearby (whether the alleged victim was at fault or not), then the court may treat it like any other battery and find that the retaliatory act constitutes battery. It is also important for defendants in these types of cases to be familiar with any state or municipal laws that could be relevant to their matter. In City of New York v. Magliaro, the New York Appellate Court decided that a man who was convicted of spitting on a police officer is guilty of a hate crime. Relatedly, a plaintiff who has experienced a spitting incident may have recourse under a variety of tort claims, as well as under state and federal anti-hate crime laws.
The Societal and Ethical Context of Spitting
While states and municipalities may have laws addressing the issue of spitting, the motivation behind such legislation is largely driven by social and ethical considerations rather than by any specific physical threat. In its nature, the act is highly charged. Because of its high offensive content, even without a perception of a threat from a specific defendant, the act is imbued with a level of social meaning that inherently carries with it a risk of harm to public safety. Whether that be harm to the specific person who is spit on, or the broader social harm that can occur when people are reduced to the level of common spittle.
As we mentioned above, this is often referred to as "common spitting." It was most recently in the news when an employee of the House of Representatives, who is an openly gay man, was repeatedly spat upon by a "traditional values" activist whose duties include harassing individuals in the gay community. His assailant was arrested, but in that situation no actual physical injury occurred. A symbol of oppression and prejudice, spitting provides a fleeting sense of catharsis to the person who does it, but can inflict psychological damage on the recipient. This opinion is not limited to legal professionals, but extends into psychology. An article in Psychology Today (in fact entitled "Spitting Upon Persons,") cites Roman philosopher Juvenal’s claim from 100 AD that spitting is "an insult beyond all insults." They attribute this largely because of the "spitter’s" belief in their own superiority, which leads to a reduction of the spitting recipient. More recent studies have shown how this sort of prejudice at the level of the individual can be more broadly directed at groups, and become manifest as discrimination.
When the act is preceded by physical assault, as was the case with the 1965 March on Montgomery, where Andrew Young was spat upon and kicked by a segregationist attack, it carries with it the highly charged social meaning of being simultaneously denied basic civil rights, while experiencing a threat of physical injury. Being attacked in such a way is emblematic of a history of attempted eradication of the targets of the assault. While Young’s attacker was arrested and prosecuted, his history of assaulting other African Americans led to the racially motivated attack being treated seriously by authorities.
Currently, getting a prosecution for, or even a victory in a civil lawsuit for spitting on someone is literally a fucking uphill battle. Many people recognize that spitting represents a social ill, but are often unable to tie it back into a meaningful and systematic legal context. That is a shame, because as an extension of these social factors, the law also requires that prosecutors and judges make subjective evaluations about how harmful they personally find the act to be, although this is rarely made explicit to the jury. This is particularly unfortunate for those who have been the direct recipients of spittle from another, who often find judges and juries to not find the act as reprehensible as the depositors may. This subjectivity directly leads to a preclusive effect, where the legal system tends to signal to victims that reporting spitting will be of little help to them. That is a toxic situation that can be exacerbated by gaping social inequality in the United States, both seen and unseen.
Spitting is an affront to personal agency, and as it cannot exist outside of a social context, it is also instrumental in disenfranchising broader social groups. It is for this reason that our law must be reconciled with our ideas about how our society and the world we inhabit should be.
Navigating Legal Recourse After Being Spat Upon
If you are the victim of a spitting incident, it’s important that you gather evidence soon after the incident occurs. For instance, take photos of your clothing and any other property that may have come into contact with the person’s saliva. Make sure to document observations of the incident. As soon as possible after a spitting incident, evaluate your legal options. If you have been the target of a spitting incident during or after an arrest or detention, make notes of the officers’ names and badge numbers, and file a complaint with the agency who employed the officer as soon as you are able to do this.
If you are accused of spitting on someone or spitting during an arrest , you should take the matter seriously. Spitting on someone is often considered a form of assault, specifically an assault against a police officer. Therefore, you may face criminal charges against you if you spit on someone during a stressful situation. This can lead to facially valid assault and battery crimes, which can be aggravated if injuries result from the spitting. Spitting on someone is also an element of the more serious offense of aggravated battery that occurs in various situations, including the following: When you think that you may be accused of crime relating to spitting on someone, seek representation from an experienced criminal defense attorney as soon as you are able to do so after the incident.