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As a general matter, unwanted touching of one person by another is not lawful.

But is there ever an exception?

For example, when limited available space requires it. Like, for example:

  • In a crowded elevator?
  • In the bleachers at a crowded football game?
  • On the sidelines of a crowded parade?
  • Other crowded or enclosed spaces?

To the letter-of-the-law, is that still illegal? Or is there an exception made in the law?

For clarity, I am not referring to inappropriate touching. I'm just talking about the normal kind (brushing and bumping elbows, shoulders, hips, etc.).

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    What crime do you think it is? My guess at what you mean, "assault" or "battery", generally needs to have a threat of harm or offensive intent not apparent in the bulleted examples. A person who says "pardon me" (thus declaring their intent is forward travel and nothing rude or offensive) and takes reasonable care to not threaten or harm in passing, even if there is ancillary contact: on what basis do you assert this is "generally unlawful"? – user662852 Dec 17 '15 at 13:30
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    @user662852: I'm not exactly sure what crime it might be. If you ever had two siblings under the age of 8 riding in the back seat, you might have heard one say to the other "Stop looking at me!" That's not illegal. But if it's "Stop touching me!" Then the exact same behavior if they were adults might be illegal. Although I'm not sure what crime it might be. The examples you describe illustrate my point of distinction. Hoping someone can shed light on how the law actually treats all of this. – Mowzer Dec 17 '15 at 16:27
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    IANAL; my understanding has always been that unwanted contact that could easily be avoided can be considered assault. But for anything to be prosecuted it will have to make sense to the jury. For example, I don't think tapping someone on the shoulder to ask them to dance would be considered assault by most juries (although a prejudiced one might decide differently). But if the person has specifically asked not to be touched, then a jury might consider it to be assault. I think your question is a good one because it's very possible that my understanding is incorrect. – RockPaperLizard Dec 17 '15 at 21:04
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    @mowzer, the OP doesn't refer to your backseat analogy, yet you bring it up 3 separate times in the comments -- maybe you should revise the question to reflect your true concern? If A touches B in any case (including the backseat analogy), then they are innocent until proven guilty. If A can be proven by the state (or by B in a civil case) to have the intent to offend or threaten B, or recklessly harmed B, it's assault per cpast's answer. If intent (or recklessness) cannot be proven, then they're innocent. – user662852 Dec 17 '15 at 22:10
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    @curiousdannii: Lawful use of force by the police is governed by a different set of laws than what applies to the general public. – Mowzer Dec 19 '15 at 3:34
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This has been a long-considered matter. Under common law, unwanted incidental touching - say, in the context of a public space - is not illegal per se.

In Cole v. Turner (1704) 87 ER 907, Holt CJ said that:

First, the least touching of another in anger is a battery.
Secondly, if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.
Thirdly, if any of them use violence against the other, to force his way in a rude in ordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt, will be a battery...

Now, I'm not sure how far American common law has diverged from English common law in this respect; it's possible that some US court has held that even such trivial contact is battery. However, I would think it unlikely, as such contact happens in the course of everyday life - a test later applied by English courts - and to make such contact tortious would likely be extremely detrimental to the functioning of modern society.

There's some discussion in comments about whether the fact that some contact is incidental or deliberate makes a difference - I submit that it does not, on the basis that unless we are incapacitated and unable to make decisions regarding the movements of our own bodies, all actions we take are deliberate.

It is also not simply a case of implied consent because then one could just hold up a sign purporting to withdraw such consent, and then bring actions in battery against everyone who brushes past them in a crowd.

As for specific criminal statutes, I can't prove a negative, but I haven't found anything that would criminalize the incidental touching of another, even in crowded places. As in Texas law, criminal assault generally requires some element of intent to harm or provoke, or the knowledge that such actions are likely to harm/provoke.

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To use Texas as an example:

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

If no reasonable person would think the contact is offensive, and no injury is involved, no assault was committed. This is a fairly common definition of "assault."

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  • +1. But it's still unclear to me how the 8-year-old-annoying-brother-in-the-back-seat behavior is treated by the law if adults do that. Surely there is some recourse for the victim? Maybe that would be the crime of harassment perhaps if it's repetitive? Care to opine? – Mowzer Dec 17 '15 at 21:09
  • I think item #3 in that Section is the most interesting. I also think it's good, but sad, that they had to add "including the person's spouse" to items #1 and #2. – RockPaperLizard Dec 17 '15 at 23:03
  • @RockPaperLizard: Re items (1) and (2). I'm guessing this statute was written pre-1960-ish, let's say? I think the last word of (3) provocative answers my 8-year-old analogy. Answer accepted. – Mowzer Dec 18 '15 at 18:53
  • @RockPaperLizard : sad they had to, but on the bright side, they did do so. Compare the oldest statute still in force in England and Wales (*), which is full of "any person, whether low-born or high". There was still the option for different rules for different classes ... but they didn't take it. *: Statute of Marlborough - 1267, 750 years ago. – Martin Bonner Nov 21 '17 at 14:59
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Actually, as a general matter, unwanted 'touching' or if you prefer, incidental bodily contact, is most certainly NOT unlawful.

You have no valid expectation of a sphere of invincibility in public.

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    Out of curiosity, is "sphere of invincibility" a legal term? – RockPaperLizard Dec 17 '15 at 17:56
  • @RockPaperLizard, I highly doubt it! Maybe more aptly called "personal space" – dwoz Dec 17 '15 at 18:00
  • I challenge your assertion that people have no expectation of "personal space." Read my comment under the OP. Using the two 8 year-olds in the back seat analogy: certainly there is no expectation that person A can intentionally touch person B if person B does not want to be touched. Don't you agree with this? – Mowzer Dec 17 '15 at 18:05
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    I recently spent three hours with my leg and arm pressed up against a rather large lady on an airplane. I didn't want the contact, but there is absolutely nothing I could have done about it; even if I requested she stop touching me, there would have been no legal recourse. I was not being assaulted nor harassed. – kbelder Dec 17 '15 at 18:41
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    I'm conjecturing now, but it comes down to a couple key concepts. First, co-equal competing 'claim' to the same public spot of ground simultaneously...who is to say whom is more entitled to that particular sidewalk at that moment? Second, de minimis: the law loathes trivialities. – dwoz Dec 18 '15 at 18:58

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