Assault and battery, though often confused as the same charge, are two different and separate charges under Illinois statutes.


Assault is described as any type of action or words that causes another person to reasonably anticipate some sort of harm or bodily violence.  An assault may be something as simple as an attempt at causing physical harm to another person, or performing some sort of threatening action towards another person, however no physical contact is necessary for a person to be charged with assault.


Battery is a more serious criminal offense and is usually accompanied with assault charges. A battery is any type of intentional physical contact that is offensive to another person, whether the contact results in an injury or not.



An assault under Illinois law occurs when a person knowingly acts without legal authority in a way that puts another person in reasonable apprehension of receiving a battery. 720 ILCS 5/12-1. This is often referred to as a simple assault.


Despite the use of the word apprehension in the definition of assault, for an assault to occur, the person being assaulted does not necessarily have to be afraid of the person committing the assault. The victim only has to reasonably fear, that is, think or believe that a battery is about to occur. So a larger or seemingly stronger person can be in fear of battery from a smaller or seemingly weaker person.


An assault can be something as simple a person raising a fist at another person, or as extreme as threatening someone with a weapon such as a gun. The use of a gun or another deadly weapon is considered an aggravated assault, and is a much more severe offense than simple assault. In addition, if a person tries to hit another person but misses, this conduct can be enough for an assault charge. Threatening a person with words alone is often not enough for an assault charge, but this may depend on the particular facts of a case.


During a prosecution for assault, the victim does not have to personally testify to prove the “apprehension of a battery” part of an assault charge. The judge or jury can reasonably infer that the victim was in apprehension of a battery based on the facts of the case.  see People v. Harkey, 69 Ill. App. 3d 94 (1979).



Defending Against Assault Charges

In assault cases, the affirmative defenses that are available to a defendant in a battery case often can be used in an assault case. If the defendant threatens a person while defending himself or his property, an argument can be made that he was acting in self-defense. The facts of each particular case may also provide a good defense to an assault charge. If you did something, such as throw a punch to hit someone, but the person you tried to hit did not see you throw the punch, it is unlikely that you can be charged with assault. Because assault relies on the victim’s apprehension of an impending battery, the victim has to see the punch coming. In other words, the victim cannot be in fear of being hit if the victim does not expect it.



Simple Assault is a Class C misdemeanor in Illinois under 720 ILCS 5/12-1(c). As a Class C misdemeanor, the range of sentencing options are from a term of supervision/probation to a maximum of 30 days in county jail, as well as a fine of up to $1,500. The judge may also impose a requirement that the defendant perform up to 100 hours of community service.


Aggravated assault is a crime that derives from a less serious offense, simple assault.  Aggravated assault is defined as committing a simple assault in a certain location, under certain conditions, or against certain groups of people. 720 ILCS 5/12-2. Due to the possibility of an aggravated assault being charged as felony, contacting a criminal defense attorney in these matters is strongly recommended.


Aggravated Assault Based on Location

Committing an assault in a particular location can change the simple assault charge into an aggravated assault charge. This can happen if the assault is committed in the following public places; places of accommodation, amusement parks, sports venues or a public street. 720 ILCS 5/12-2(a).


Aggravated Assault Committed Against Certain Groups of People

Simple assaults that are committed against certain people can be characterized as aggravated assaults if the person committing the assault is aware of the victim’s status as one of the following people. 720 ILCS 5/12-2(b):

  1. Physically handicapped people or a people over 60 years old.
  2. Teachers or other school employees while on school property, or on property that is used for school.
  3. Park district employees.
  4. A peace officer, correctional officer, probation officer, fireman, private security officer, emergency medical technician, or certain employees of a correctional institution and the Department of Human Resources while these employees are:
    1. Performing official duties;
    2. Assaulted to prevent performance of official duties; or
  • Assaulted in retaliation for performing official duties.
  1. Employees of the State of Illinois or certain city employees within the State, while the employee is performing his or her official duties.
  2. Transit employees, such as a CTA bus driver, performing his or her official duties, or a transit passenger.
  3. A sports official or coach while he or she is participating in competition.
  4. A process server while he or she is serving papers.



Aggravated Assault Base on the Use of Weapons or Objects

In the final definition, a person who commits an assault using a weapon or in any of the following ways may be charged with aggravated assault. 720 ILCS 5/12-2(c):


  1. Uses a deadly weapon, including a gun or anything that is designed or manufactured to look like a firearm, without firing it.
  2. Fires a gun, including from a car, as in a drive by shooting.
  3. Conceals his or her identity by wearing a hood, robe, or mask.
  4. Uses a gun, without firing it, against law enforcement or emergency medical personnel, while he or she is:
    1. performing his or her official duties;
    2. assaulted to prevent performance of his or her official duties; or
  • assaulted in retaliation for performing his or her official duties.
  1. Drives a car in a way that causes another person to think they are about to be hit by the car.


Penalties for Aggravated Assault

Aggravated assault can be a misdemeanor, or in some cases, a felony, depending on which of the above definition a person’s conduct falls under. The penalties for misdemeanors charges of aggravated assault can range from a term of supervision to imprisonment in county jail. The sentencing for felony aggravated assault varies from terms of probation to imprisonment with the Illinois Department of Corrections. In addition to terms of imprisonment, a person charged with aggravated assault may also have to pay fines and complete community service.



A battery occurs when a person intentionally and knowingly causes another bodily harm, or causes physical contact of a provocative or insulting nature by any means. 720 ILCS 5/12-3.

Under this statute, a person commits the crime of battery when he or she does the following acts knowingly and without legal justification:

  1. Causes bodily harm to an individual by any means; or
  2. Makes physical contact of an insulting or provoking nature with an individual by any means.


These two definitions of battery are often referred to as simple battery.  Domestic battery is defined as committing a battery on a family or household member. 720 ILCS 5/12-3.2.


Charges brought under the first definition of battery are much more common than under the second. Fights between two or more people are the most common occurrence that leads to a charge of battery, although one punch alone can lead to a charge of battery. If a fight erupts in which the police are called, everybody involved in the fight might be arrested, or the police may arrest some people and not others. Similarly, the prosecution may choose to prosecute one person in a fight and not another.


Defending Against Battery Charges

The definition of battery prohibits people from causing bodily harm to others without legal justification. Self-defense is one legal justification that may be used as a defense in a battery case depending on the individual facts of a case. In most self-defense cases, the battery has to be in relation to an immediate threat to the person or his property.

In order to be convicted of battery the basic elements of bodily harm or unwanted touching must be proven beyond a reasonable doubt. In many cases, charges of battery and assault are stories fabricated by the victim pressing the charges. Because it is often difficult to find witnesses in these cases, the judge or jury needs to decide if the charges can be proven beyond a reasonable doubt.



Battery Involving Other Physical Contact

Criminal charges based on the second kind of battery, that involving touch, are not limited to touch by a body part. The touch can be through the use of an object, or other means, as well. However, the touch has to be deliberate and not accidental, such as bumping into someone on the street. The kind of touch that would qualify, for example, is if a person deliberately spits on another person. The Courts deem spitting on another person to be a battery because, in most cases, the spitting would be considered contact of an insulting or provoking nature.


Penalties for Battery

Simple battery is a class A misdemeanor punishable by up to one year in prison. The range of sentencing options for a defendant convicted of simple battery to probation or conditional discharge for a period of up to two years. In addition, under Illinois law 730 ILCS 5/5-4.5-55, a court may impose a fine of not up to $2,500.  Additionally, if a victim suffers any injuries as a result of a battery, the court may also order the accused defendant to pay the victim for any expenses associated with the treatment of those injuries. The defendant is given a certain amount of time to make these payments, and if a defendant fails to make these payments, the court can order a seizure and sale of his or her property to make the payments. 730 ILCS 5/5-5-6(b).


Aggravated Battery

In Illinois, the definition of aggravated battery is divided into seven categories, mainly based on the commission of a battery.  Aggravated battery occurs based on different conduct by the potential defendant, towards different victims, or using weapons or other devices.  A person may be charged with aggravated battery for the following actions:


Aggravated Battery Based on the Injuries Sustained – Great Bodily Harm

Aggravated battery occurs if the victim suffers great bodily harm, permanent disfigurement, or disability as a result of a battery. (720 ILCS 5/12-3.05(a)). This category of aggravated battery also includes the use of an explosive device, gas or chemical agent, or a deadly biological agent to cause the victim’s injuries.


Aggravated Battery Based on Victim’s Status

  1. Aggravated battery includes any bodily injury to law enforcement officials who are attacked while working, to prevent them from performing, or in retaliation for their performance of their official duties.
  2. Injuries to a child under the age of 13 years, or a severely mentally disabled person, if the person committing crime is at least 18 years old. (720 ILCS 5/12-3.05(b).)
  3. The commission of a battery, without using a weapon, on a person over the age of 60, a pregnant woman, teachers, certain state employees while they are performing official duties, and some medical personnel. The person committing the battery has to be aware that the victim satisfies one or more of the listed categories. (720 ILCS 5/12-3.05(d)).





Aggravated Battery Based On Location

Committing a battery in a public street or other public areas such as, entertainment areas, sports arenas, or domestic violence shelters. (720 ILCS 5/12-3.05(c)).



Aggravated Battery Based on the Use of a Firearm or Other Devices

  1. Discharging a firearm while committing a battery, especially against certain groups of people listed in the statute. (720 ILCS 5/12-3.05(e)).
  2. Use of hoods and other coverings to conceal identity, shining a light or laser so it touches another person, and recording the battery with the intent to disseminate the recording. (720 ILCS 5/12-3.05(f)).


Aggravated Battery Based on Certain Conduct

  1. Forcing or assisting a victim to take controlled substances, and as a result, the victim suffers great bodily harm, or becomes permanently disabled.
  2. Forcing, by threats or otherwise, the victim to use controlled substances, or eat poisonous food that causes him or her to be physically injured.
  3. A prisoner, a sexually violent person, or a sexually dangerous person throwing bodily fluids, such as blood and urine, at correctional employees or employees of the Department of Human Services. (720 ILCS 5/12-3.05(g)).


Penalties for Aggravated Battery

A charge for an aggravated battery is a class 3 felony, carrying a sentencing range from probation up to 10 years imprisonment. The presence of the specified conduct detailed above can result in the aggravated battery being charged as a class 1 or 2 felonies, with much longer prison sentences.