What Are the Elements of Assault Occasioning Bodily Harm ?
Criminal assault requires that the fear be reasonable. See Barrios v. State, 118 Md. App. 384, 403, 702 A.2d 961 (1997)(involving a case in which appellant was convicted of two counts of assault with intent to prevent lawful apprehension, and holding that "a rational trier of fact could reasonably conclude that appellant's conduct placed the officers in reasonable apprehension of immediate bodily harm ....");
Lamb v. State, 93 Md. App. 422, 442, 613 A.2d 402 (1992)(involving a criminal assault charge, and stating that assault of the intentional threatening variety "is a fully consumated crime once the victim is placed in reasonable apprehension of an imminent battery.") ;
Dixon v. State, 302 Md. 447, 458-59, 488 A.2d 962 (1985)(stating that the assault "attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is to apply such force to him.")(quoting Lyles v. State, 10 Md. App. 265, 267, 269 A.2d 178 (1970)).
Even if the assault category in the Domestic Violence Act encompasses civil assault, reasonableness may still be an element. Compare W. Page Keeton et al., Prosser and Keeton on the Law of Torts 10, at 44 (5th ed. 1984)(stating that in assault cases, courts "have often stated that the apprehension must be one which would normally be aroused in the mind of a reasonable person.") with Restatement (Second) of Torts 27 (1965)(positing the proposition that "if an act is intended to put another in apprehension of an immediate bodily contact and succeeds in so doing, the actor is subject to liability for an assault although his act would not have put a person of ordinary courage in such apprehension."), and Lee v. Pfeifer, 916 F. Supp. 501, 505-06 (D. Md. 1996)(stating that to find liability for the tort of assault in Maryland, one element that must be satisfied is that the defendant's actions must have raised an apprehension of imminent bodily harm in the plaintiff's mind, and that element is "measured by an entirely subjective standard.")(citing Restatement 27)).
It was noted in Kellum v. State, 223 Md. 80, 85, 162 A.2d 473 (1960), that assault "has substantially (if not exactly) the same meaning in our law of torts as in our criminal law."
The Civil Pattern Jury Instruction, No. 15:1 (3rd ed. 1984, 2000 Cum. Supp.) indicates that reasonableness is an element. It provides:
An assault is an intentional threat, either by words or acts, to physically harm another person without that person's consent. Actual contact is unnecessary. However, it must appear to the other person that the one making the threat has the present ability to carry it out and the person threatened must be put in reasonable fear of imminent harm.
Even if reasonableness is not an element in the assault category of abuse, intent to cause fear or offensive contact, unlike the category before us, is an element. As stated above, the category of abuse before us is defined simply as "an act that places a person eligible for relief in fear of imminent serious bodily harm." 4-501(b)(ii).
By the plain meaning of this provision, this category of abuse does not require any proof of the defendant's intent. Accordingly, each of the other four categories of assault carry with them some sort objective factor that helps to give the category some indicia of reliability and to reduce the likelihood of a bogus claim.
cause an apprehension of such contact." Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 398, 449 A.2d 1176 (1982).
What constitutes an "offensive contact" could obviously mean vastly different things to different people, if it was defined by a subjective test. As we stated in Pettit v. Erie Insurance Exchange, 117 Md. App. 212, 224, 699 A.2d 550 (1997), however, what constitutes an offensive contact is defined by a community standard, and as such "is offensive if it offends a reasonable sense of personal dignity." (quoting Restatement (Second) of Torts 19 (1965)).