It is irrelevant whether this woman wanted to show other people her breasts in public, and it is irrelevant whether this woman decided to hang out with him later in the day. What does matter is that Zeke grabbed her shirt and showed her breast to the world and then proceed again in a second attempt, evidently without her consent either time as she quickly pulled up her shirt the first time and slapped his hand away the second time.

Based on the evidence made public thus far, this woman could have a misdemeanor assault or battery claim against Elliott. Each state expresses its own essential elements for what constitutes assault and battery whether it be a misdemeanor or criminal charge, but the general idea is consistent across the board.

What are Assault & Battery?

Generally speaking, assault is an infliction of the apprehension of imminent harmful or offensive contact by one person upon another with the intention to create such apprehension. When this definition is pulled apart piece by piece, you can see the elements a plaintiff must show to establish a prima facie case (i.e., establish facts to be true on its face unless disproved) of assault:

1. The defendant acted (i.e., mere words are not enough, for there must be an overt act that is a voluntary, external manifestation of the defendant’s will)
2. With intent, where it is presumed that the defendant had the purpose of doing and chose to do the act,
3. To create apprehension
4. Of imminent harmful or offensive contact, where “imminent” refers to no belief in the delay of contact, & “harmful or offensive” is construed as whether we as a society perceive the contact to be harmful or offensive regardless of the defendant’s state of mind (i.e., the defendant does not need to intend that the contact be harmful or offensive; it only matters that he intended to do the act and society considers it to be so),
5. & the plaintiff reasonably apprehends such contact.

To create an apprehension, there must be an understanding of that act beyond the fear of the act. So, in determining how to measure what can be reasonably understood, courts use the “reasonable person” test by asking, “What would a reasonable person in the plaintiff’s shoes do?” Some factors that could be considered in this analysis are (a) the degree of certainty and distance to show a sense of expectation based on the chance to stop the act or to avoid it, (b) the plaintiff’s knowledge of the act, and (c) the defendant’s sufficient ability to actually execute the act. That is why words alone cannot create an apprehension of imminent harmful or offensive contact, but words paired with action could reach the threshold.

Sometimes assault gets improperly bundled with another tort, battery, courtesy of the popular legal classification “assault and battery” in some states’ tort law. Battery is another intentional tort, and some states consider “assault and battery” a single offense, but the elements can differ slightly. In contrast from assault, battery is the infliction of a harmful or offensive contact by a person upon another with the intent to cause such contact, not just the apprehension but real contact. Battery can also come in varying degrees (e.g., first, second, third) that describes how severe a criminal case would be. Here are the general elements of a prima facie case of battery:

1. The defendant acted
2. With intent, where general intent to commit the act is enough for civil and intent to cause injury for criminal,
3. To cause contact to the plaintiff’s person, where “plaintiff’s person” can include anything connected to the body as to be customarily regarded as part of the body (e.g., clothing or property held),
4. That is harmful or offensive
5. & the act causes the contact, where the contact would not have happened “but for” the defendant’s act.

How The Law Applies To Zeke’s Actions