Since When is it a Crime to Cough?

cough sprayPeople cough every day, potentially dozens of times a day. People also tend to sneeze from time to time and although it’s not considered very polite, sometimes they spit as well. Even the police do these things. So, what exactly is the big deal? How can one of these relatively normal bodily functions ever be a crime?

The answer lies in the definitions of what a “battery” and “Assault” are in Illinois. A battery is a Class A misdemeanor punishable by up to 365 days in jail and / or $2500 in fines, although sometimes, a felony aggravated battery is charged which is punishable by penitentiary time. A battery occurs when one person touches another person and one of two things happens:

  1. The victim is harmed in some way, suffering pain or an injury, whether it’s a long-lasting permanent injury or a momentary “ouch”, or
  2. The victim, although no pain or injury occurs, feels like the touching is offensive or provoking in some manner.

An Assault on the other hand is usually a Class B misdemeanor that’s punishable by up to 6 months in jail and /or up to $1500 in fines under Illinois law. Different from a battery, an assault involves no touching at all. A crime occurs when the accused performs some action that places the victim in reasonable apprehension of receiving a battery. So, in other words, if a person reasonably thinks that they are about to get hit, struck, touched, or stabbed (even though it never actually happens), what has occurred is the crime of assault. But how does that make a cough a crime?

When is a Cough a Battery?

For as long as humans have been around, there have been people that wanted to harm others. This is what a battery is all about. Most people understand that a battery happens when one person hits, kicks, slaps or punches another. But a battery doesn’t have to involve only the use of the defendant’s body. Consider what happens when one person shoots the other with a gun. He’s not actually touching the victim with his body; he’s sending a projectile at the other person which then strikes the victim. So, it doesn’t matter if the accused physically touches the other person as long as he causes something to touch that person. It could involve throwing a law book or the contents of a cup of coffee; almost anything that is sent in another person’s direction and touches them may constitute a battery.

Batteries must be intentional though, so accidents don’t count unless they occur as a result of the accused being reckless. When you accidentally step on another person’s foot while in line or crash into another person’s car, it’s not a battery. But if you stomped that foot on purpose or rammed your Ford Explorer into your cheating ex-girlfriend’s Volkswagen Bug in the heat of an argument, that’s a battery.

So, the same is true, whether it’s a cough, a sneeze or spit. If you intentionally sent your tiny microscopic germs into the face of another person, you could technically be charged with a battery. It would of course be up to the prosecutor to prove to the Judge beyond a reasonable doubt that you did this on purpose and that a droplet touched their body, but if proven, it would be a crime. Never mind that the particles or droplets of saliva are so small, because size doesn’t matter. If you did it on purpose and something touched another person, you may be in trouble. But what about the fact that the “victim” wasn’t injured? Remember, although a battery is often a “harmful” touching, it can also be an “offensive or provoking” touching. And who wouldn’t be offended if you purposely coughed, sneezed or spit in their face?

When is a Cough an Assault?

Consider the situation where someone throws a knife or a rock at another person. If it hits the victim, it’s a battery. But if it misses them, it may very well still be an assault because the person was in reasonable apprehension of receiving a battery. Although it turned out that there was no actual battery, the victim nevertheless reasonably feared that he was about to be hit. That’s an assault.

So, whether the facts involve a cough, a sneeze or spit, it may be an assault even though there was not even any contact by droplets. Sometimes, a situation will occur when the offender is known to have a disease or tells the victim (whether true or not) that he is ill. This only aggravates the situation and makes it more easily believable by the Judge that the victim truly was in fear of receiving a battery, in this case a disease or condition. Back in the 1980’s it was not uncommon for a person in custody to tell the Chicago Police that they had AIDS before spitting or coughing on them. Especially before it became widely known how AIDS was transmitted, the fear was real for those on the receiving end. But it can be virtually any condition or illness as well, from a sexually transmitted disease to a cold to Covid-19 that may serve as an aggravating basis for an assault.

A Battery is Nothing to Sneeze at – Call a Lawyer

Whether your criminal case is straightforward or involves more complicated or unusual circumstances, the Chicago assault and battery defense attorneys at Mitchell S. Sexner & Associates LLC have the experience to help. Call our live hotline 24/7 at (312) 644-0444 to get in touch with a member of our legal team.

Written by Mitchell S. Sexner Last Updated : August 3, 2020