Is Spitting a Common Assault? | LY Lawyers (2022)

While it may not seem like it, spitting on someone can be a crime.

Under the Crimes Act 1900, spitting on someone is considered an assault if it is committed with intent or recklessness.

Spitting is Regarded as a Common Assault

Spitting is legally classified as a common assault. Section 61 of the Crimes Act 1900 states:

Whosoever assaults any person, although not occasioning bodily harm, shall be liable to imprisonment for two years.

Spitting, whilst not considered as a serious act of violence against another person, is still considered as an assault against that person.

What is Common Assault?

In New South Wales, assaults are divided by two classifications: Common assault and aggravated assault.

Common Assault was defined in the case of R v Burstow; R v Ireland [1998] to mean:

‘Any act – and not a mere omission to act – by which a person intentionally – or recklessly – causes another to apprehend immediate and unlawful violence.’

The main difference between a common assault and aggravated assault are the impacts, as common assaults result in little to no injuries to the person.

Conversely, aggravated assaults are serious in nature and often require medical treatments, as well as harsher punishments for these crimes.

(Video) Common Assault

For assault to be established, it is important to note that

The elements of an offence of assault include:

  1. The accused acting intentionally or recklessly to cause the complainant to apprehend immediate and unlawful violence
  2. The accused acting without the consent of the complainant
  3. The accused realising the complainant’s possible fear of being subjected to immediate and unlawful violence, and acting regardless
  4. The conduct had no lawful excuse

During trial, the prosecution will need to establish all of these elements existed, and the defence will need to disprove the elements and establish one of the defences.

To understand more, you can read our common assault case studies where we have represented clients in the past.

What is Battery?

The Criminal Trial Courts Bench Book advises that battery is ‘The actual infliction of unlawful force on another’.

Battery falls under common assault, as common assault does not always include an action of force or physical conduct – whereas battery does.

Examples of battery can include pushing or shoving someone, or even patting them on the arm in a forceful manner.

Existing Laws on Spitting and Coughing

There were laws in force regarding sitting and coughing, as a result of the COVID-19 pandemic. They have since been repealed, however due to the changing nature of both the pandemic and the law’s response to the pandemic, they could potentially be back in force in the future.

If someone intentionally spat or coughed on another person, namely a public official or worker while at the worker’s place of employment, or travelling to or from the place of employment.

The act of spitting or coughing must be ‘reasonably likely to cause fear about the spread of COVID-19’.

This can include workers such as those in retail, public transport and ride-sharing drivers, hospitality workers, food delivery drivers, and postal staff.

Public official workers include those in the emergency services, healthcare workers, immigration and border protection staff, and public servants.

(Video) Court Cam: Man SPITS on Judge, Then Starts Jail Riot | A&E

It is important to be aware of these old laws, not only to remember to be a courteous citizen, but also in case they were to come back into effect.

When spitting or coughing is done unintentionally in a domestic setting, such as ‘spraying’ not ‘saying’, this does not constitute a common assault. Where there is lack of evidence for intent or recklessness, you may be found not guilty of the offence.

Under Civil Law, spitting and coughing on someone could be a tort. A tort is a civil wrong committed by a person against another person, generally punishable by damages awarded to the plaintiff.

How do I defend a spitting offence?

There are four main defences to common assault:

  • Self Defence
  • Necessity
  • Duress
  • Consent

Either one of these defences must be established in their entirety against the burden of proof, beyond reasonable doubt.

Self Defence

Self defence, under Section 418 of the Crimes Act 1900 states:

‘A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.’

(Video) Is spitting considered Assault or Battery #shorts #law #lawyer #tips #lawlife

The conduct amounting to self defence must be reasonable in relation to the threat or perceived threat.

Necessity

Necessity is used as a defence where it must be necessary for the defendant to have acted in such a way (i.e. committed the assault) to defend themselves, another person, or property, in a reasonable manner.

The defence of necessity can be used when the following three elements are present in the case:

  1. The assault was necessary, or reasonably believed necessary, to avoid or prevent death or serious injury.
  2. Avoidance or prevention of death or serious injury was the reason for committing the assault.
  3. The assault, viewed objectively, was reasonable and proportionate, having regard to the avoidance or prevention of danger or death.

Examples of necessity include pushing people out of the way during an escape situation.

Duress

A defendant can be under duress when their actions were taken in response to an implied or expressed threat of death or serious injury to themselves, or another person.

The defence of duress has some overlap with the defence of necessity.

Duress can be established through the following elements:

  1. Threats the defendant genuinely believed they would be killed or seriously harmed if the assault was not committed;
  2. Would the threats have made a reasonable person act in this way?
  3. Could the defendant avoided committing the assault through escaping the threats without damage to themselves?

Consent

If the defendant can prove the complainant consented to the act in question, then the charges will cease. This is generally the most difficult defence to prove, as the complainant is not likely to admit to consenting to the act they are arguing against.

Sufficient evidence would be required to establish this as a defence beyond reasonable doubt.

What penalty would you expect from a spitting offence?

If the offence is your first criminal offence of any nature, the court will likely consider an application for the charge to be dealt with by way of a Section 10, without recording a conviction. Many factors will be taken into account when considering whether the magistrate will deal with your charge without recording a conviction.

Criminal Conviction

Statistics say that 57% of first offenders who plead guilty to common assault are dealt with by way of not imposing a criminal conviction, pursuant to Section 10 of the Crimes (Sentencing and Procedure) Act 1999.

What is a Section 10?

Under the Crimes (Sentencing Procedure) Act 1999 (NSW), Section 10 refers to a criminal penalty being imposed by a magistrate or judge during the sentencing process, with the absence of a recorded criminal conviction.

(Video) Bodycam Shows Woman Allegedly Assaulting, Threatening to Spit On Florida Police Officer

In general, a Section 10 is known as a ‘dismissal’, because of the lack of a criminal record.

A Section 10 is beneficial because the defendant does not have the legal obligation to disclose their offence, for example, when applying for new jobs or obtaining a visa for overseas travel.

To be granted a Section 10, the magistrate or judge will take into account the following factors:

  • The character, age, and mental condition of the defendant, including any other criminal history
  • The seriousness of the offence
  • Extenuating circumstances
  • Other matters the court considers relevant

If the offence is an indictable offence, a Section 10 will not be appropriate. However, for a common assault charge for spitting on someone, the court could deem it an appropriate cause of action.

If you have already obtained a Section 10 in the past, this may be considered under your character factors. It is not impossible to obtain one twice, however less likely if this is a recurring offence.

Learn more about Section 10 here.

What to Do When Charged With a Spitting or Coughing Offence

As always, it is very important that you seek legal advice when you find yourself charged with any assault offence.

It is best to be legally represented by professionals who are trained to help in circumstances that have legal implications.

Call our specialist Criminal Lawyers at LY Lawyers on 1300 595 299 for more information, or to arrange a free consultation.

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FAQs

Is spitting classed as assault? ›

The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.

What counts as common assault? ›

An assault is used to describe both an assault and battery, and indeed, there is often confusion between both the two offences. What is the Definition of Common Assault? This is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence.

What type of crime is spitting at someone? ›

Yes, spitting on someone is classed as battery under the common assault category of the Criminal Justice Act 1988. Battery is the application of unlawful force, and as well as spitting, covers incidents of pushing and slapping. Spitting, if done deliberately, is seen as an assault.

What is an example of common assault? ›

If the defendant causes another person to fear violence, such as raising their fist at the victim, this is enough to be classed as assault. If physical violence is attempted but isn't successful, this is also counted as an assault.

Is it assault if someone spits in your face? ›

For example, spitting in someone's face does not result in actual injury to that person. But it does constitute offensive touching. And if you tried to spit in their face but they dodged the spit, you can be charged with assault.

How serious is a common assault charge? ›

Common assault is the least serious of the assault charges. It is governed by s39 of the Criminal Justice Act 1988.

Is spitting on someone a crime? ›

You can be accused of assault even if you didn't hurt the other person or used very little force. For example, spitting in a person's face can be an assault. Important! Assault can have serious legal consequences when it puts the victim's life in danger or when the victim is injured.

Will I go to jail for common assault? ›

Common assault carries a maximum penalty of six months in prison and/or a fine or community order. A prison sentence is generally reserved for cases where serious injury was caused, and higher culpability is present.

Can you be convicted by word of mouth? ›

Oral copulation in public is often a misdemeanor. For example, in California, a conviction for oral copulation through force or fear carries: 3, 6, or 8 years in California state prison, and/or. up to $10,000 in fines.

Is spitting physical aggression? ›

Aggressive physical contact should always be considered abusive and serious even if it doesn't cause marks or permanent damage. Some examples of physical abuse include: Scratching, biting, grabbing or spitting.

What is legal assault? ›

Definition. Assault is the attempt to commit battery. Battery includes intentional application of force to another person without any lawful justification. Important aspect. Threat of violence is enough for assault.

What is a Section 47 assault? ›

Section 47 Assault – Actual Bodily Harm (ABH)

The offence is committed when a person assaults another, thereby causing Actual Bodily Harm (ABH). This can mean a bruise or a minor graze.

What happens when you get charged with common assault? ›

Common assault carries a maximum penalty of six months in prison and/or a fine. A person charged with a first offence is likely to receive a fine rather than a custodial sentence.

What are the three types of assault? ›

There are three different categories of assault: Assault, Assault Causing Harm, and Assault Causing Serious Harm. The use or expected use of force is an important element to all three categories of assault.

What is a caution for common assault? ›

A caution can be issued at the discretion of the police as a formal warning to somebody who admits to committing a criminal offence. Cautions can be a quick and useful tool for the police to give to first time offenders who have committed relatively minor offences.

What do you do when someone spits in your face? ›

If you are in the unfortunate situation that you are spat at, the NHS recommends you should: Immediately wash the saliva off with soap and lots of water. If the saliva goes into your eyes, nose or mouth wash it out with lots of cold water. If you think you're at risk of infection, get immediate medical advice.

Can spitting be battery? ›

What is Battery in California? (California Penal Code Section 242) Spitting in someone's food can be battery in California. In the state of California, spitting on another person, someone's food, or similar acts such as the ones committed by Arguello could lead to battery charges.

Is finger pointing assault? ›

Finger-pointing and yelling at deposition does not amount to assault, appeals court says.

What is the lowest level assault charge? ›

Misdemeanor assaults are the least serious among assault and battery crimes and usually don't involve serious injury. This crime might be referred to as simple assault in your state.

How long does a caution for common assault last? ›

Cautions can be issued to anyone over the age of 10 years old. Once a police caution has been issued, it will generally appear on your record used by the Disclosure and Barring Service (DBS) for six years (this is reduced to two years if you were under 18 at the time the caution was issued).

How long does common assault Stay on DBS? ›

Convictions received when 18 or over will be removed from standard and enhanced checks if: 11 years have passed since the date of conviction.

Can you get fined for spitting? ›

In November last year Communities Secretary Eric Pickles approved an Enfield Council by-law making spitting an offence, punishable by fines up to £500.

Can you hit someone if they provoke you? ›

Can you hit someone if they provoke you? Just because someone insulted you or said something rude or mean doesn't mean you have the right to hit them. However, if physical harm is imminent or they've already hit you once, you may have a legal right to self defence and can hit them back.

What does spitting in front of someone mean? ›

Making a statement

Spitting on the ground in front of someone is supposed to show disrespect, anger, rudeness, arrogance and even bullying.

What is an assault charge? ›

There are two different types of assault: common assault and battery. Common assault is when apprehension of immediate unlawful violence is caused. Battery is when unlawful violence on another person is exerted.

Can you go to jail for slapping someone? ›

It is assault and you will be arrested.

Can you go to jail for punching someone in the face? ›

The short answer is yes, you can go to jail for fighting. However, you have the right to physically defend yourself as long as it is not excessive.

What evidence is needed to be charged? ›

Police officers usually make arrests based only on whether they have good reason (probable cause) to believe a crime has been committed. By contrast, prosecutors can file formal charges only if they believe that they can prove a suspect guilty beyond a reasonable doubt.

Can a person be found guilty without evidence? ›

It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability."

Can someone press charges without proof? ›

In general, you cannot be charged without evidence, but many people take this to mean physical evidence. In the absence of physical evidence, you can still receive drug charges if you had control over an illegal substance or had the intent to sell or distribute that substance, even if you did not physically possess it.

What are inappropriate actions? ›

More Definitions of Inappropriate behavior

Inappropriate behavior means disrespectful behaviour, sexual harassment, harassment, bullying, and/or violence. Sample 1. Inappropriate behavior means conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive. Persistent, repeated.

What are examples of physical aggression? ›

Physical aggression includes hitting, kicking, scratching, pushing, biting, punching, grabbing, throwing objects, pinching, cutting, and stabbing. Verbal aggression is typically considered as insulting, obscene or profane language or sexual advances.

What is battery vs assault? ›

The second provision of causing “bodily harm to the complainant” represents the battery within the assault charge. A simple assault charge may not include bodily harm and direct “use of force,” which means it does not carry the idea of battery within the context of the law.

What is Level 3 assault? ›

This level is punishable by up to 14 years in prison. Level 3 is aggravated sexual assault. This occurs when the assailant in committing a sexual assault wounds, maims, disfigure, or puts the victim's life in danger. A conviction on this level could potentially lead to imprisonment for life.

Which is worse battery or assault? ›

The main difference between a battery charge and an assault charge is the actual presence of harm and the threat of harm. Someone can only be charged with battery if they have caused real physical harm to someone, while a person can be charged with assault if the mere threat of harm is present.

What is physically assaulted? ›

Find Out What Constitutes Physical Assault in California

Assault is the act of attempting to touch someone else in a harmful or offensive way. Battery charges are used if someone successfully uses violence on someone else. The Simmrin Law Group can help you with both of these charges.

What is a Section 42 assault? ›

Proceedings for common 'assault are brought under section 42 of the Offences against the Person Act 1861 which reads, "Where any person shall unlawfully assault or beat any other person two justices of the peace upon complaint by or on behalf of the party aggrieved, may hear and determine such offence".

What does a Section 20 mean? ›

Section 20 agreements allow the local authority to remove a child and place them in foster care without the need for a court order. Whether or not to enter into a section 20 agreement is a voluntary decision made by the parents with the local authority.

What is a Section 18 charge? ›

Section 18 Assault is an offence described as either “wounding with intent” or “causing grievous bodily harm with intent” and is the most serious form of assault (save for murder and manslaughter) that can be committed, while accusing a person of Section 20 Assault means that the intent behind the wounding or bodily ...

Is spitting on someone a crime? ›

“So by virtue of that definition spitting, coughing on somebody certainly would amount to an assault under the Criminal Code.” Indeed, even before the pandemic there are examples of people being charged with assault for spitting on someone.

Is spitting illegal in the UK? ›

The byelaw makes it an offence to spit in the street “without reasonable excuse”, it would not cover spitting into a handkerchief or tissue. Secretary of State for Local Government, Eric Pickles, said: Spitting is a deeply anti-social and unpleasant practice. Spitting on Britain's streets is not socially acceptable.

Can you punch someone if they spit on you UK? ›

Spitting is assault, but punching someone for spitting at you is not reasonable force, and it is not self-defence. If you get spat on, you walk away even if they spit at you again; it is not justified to punch them.

Is spitting physical aggression? ›

Aggressive physical contact should always be considered abusive and serious even if it doesn't cause marks or permanent damage. Some examples of physical abuse include: Scratching, biting, grabbing or spitting.

Can you get fined for spitting? ›

In November last year Communities Secretary Eric Pickles approved an Enfield Council by-law making spitting an offence, punishable by fines up to £500.

Is finger pointing assault? ›

Finger-pointing and yelling at deposition does not amount to assault, appeals court says.

Can you hit someone if they provoke you? ›

Can you hit someone if they provoke you? Just because someone insulted you or said something rude or mean doesn't mean you have the right to hit them. However, if physical harm is imminent or they've already hit you once, you may have a legal right to self defence and can hit them back.

What happens if you spit at someone? ›

You can be accused of assault even if you didn't hurt the other person or used very little force. For example, spitting in a person's face can be an assault. Important! Assault can have serious legal consequences when it puts the victim's life in danger or when the victim is injured.

Can you hit someone who spits on you? ›

The Elements of Assault

It may be that the "spitter" had no intention to break the law or hurt the person he spit on (or at), but because spitting on someone can be considered an application of force, i.e, making contact with another person in an offensive manner, it qualifies as a simple assault.

When did spitting become illegal? ›

Beginning in 1896 in New York, towns and cities throughout America passed anti-spitting legislation, sometimes creating tensions between individual liberty and the need to protect public health, and often highlighting class issues.

Can you go to jail for slapping someone? ›

It is assault and you will be arrested.

Can you go to jail for punching someone in the face? ›

The short answer is yes, you can go to jail for fighting. However, you have the right to physically defend yourself as long as it is not excessive.

What do you do when someone spits in your face? ›

If you are in the unfortunate situation that you are spat at, the NHS recommends you should: Immediately wash the saliva off with soap and lots of water. If the saliva goes into your eyes, nose or mouth wash it out with lots of cold water. If you think you're at risk of infection, get immediate medical advice.

What does spitting in front of someone mean? ›

Making a statement

Spitting on the ground in front of someone is supposed to show disrespect, anger, rudeness, arrogance and even bullying.

What are inappropriate actions? ›

More Definitions of Inappropriate behavior

Inappropriate behavior means disrespectful behaviour, sexual harassment, harassment, bullying, and/or violence. Sample 1. Inappropriate behavior means conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive. Persistent, repeated.

What are examples of physical aggression? ›

Physical aggression includes hitting, kicking, scratching, pushing, biting, punching, grabbing, throwing objects, pinching, cutting, and stabbing. Verbal aggression is typically considered as insulting, obscene or profane language or sexual advances.

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