Caseflicks

Court of Appeals for the Seventh Circuit • 1975

United States v. Tommie Bell

505 F.2d 539

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that federal assault includes an attempted battery against an unaware or mentally incapable victim; the victim need not apprehend harm.

Background

Tommie Bell, a patient in the detoxification ward of a Veterans Administration hospital in Downey, Illinois, attempted to rape a female geriatric patient. The hospital was within the special territorial jurisdiction of the United States. The victim suffered from a mental disease that left her unable to understand what was happening.

After a bench trial, Bell was convicted of assault with intent to commit rape under 18 U.S.C. § 113(a). On appeal, Bell did not dispute the attempted rape. He argued instead that there could be no assault because the victim was incapable of experiencing a reasonable apprehension of bodily harm.

Issues

Issue #1

Whether an assault under 18 U.S.C. § 113(a) requires the victim to have a reasonable apprehension of bodily harm.

Holding

No. An assault may consist of an attempted battery, and that form of assault does not require the intended victim to be aware of the danger or capable of apprehending harm.

Reasoning

The Seventh Circuit followed its earlier decision in United States v. Rizzo, which recognized two distinct criminal-law concepts of assault. One is an attempt to commit a battery; the other is an act that puts another person in reasonable apprehension of bodily harm. Apprehension is an element only of the latter form, not of attempted-battery assault.

Because § 113(a) uses the common-law term “assault” without defining it, the court gave the term its common-law meaning. At common law, assault originally meant an attempt or offer, using force or violence, to inflict bodily injury. Under that definition, an attempted battery is itself an assault, even if it does not cause fear or awareness in the intended victim.

The court explained that the reasonable-apprehension theory developed principally in tort law and became an additional, rather than exclusive, conception of criminal assault. Treatises, cases, and the prevailing view among jurisdictions recognized both attempted-battery assault and apprehension-based assault as separate routes to criminal liability.

Authorities specifically supported treating attacks on unaware or incapable victims as assaults. Courts and commentators had recognized assault where the intended victim was unconscious, asleep, an infant, or otherwise unable to perceive the attack. Thus, the victim's mental incapacity did not negate Bell's attempted-battery assault.

Bell's reliance on Ladner v. United States was misplaced. Ladner stated that assault can be committed by putting another in apprehension of harm, but it did so while deciding whether one gunshot directed at two officers constituted one assault or two. The Supreme Court was not offering an exclusive definition of assault, and the authorities it cited likewise recognized both forms of assault.

Bell's undisputed attempt to rape the victim was an attempted battery and therefore an assault under § 113(a). Her inability to form a reasonable apprehension of bodily harm was legally irrelevant to that basis for liability.