Ezekiel Elliott Pulls Down A Woman's Shirt At Dallas St. Patrick's Festivities
Off the field, 2017 is not looking any better on Ezekiel Elliott than 2016 did. While partaking in Dallas' St. Patrick's festivities this past weekend, he reaches over to the woman next to him and pulls down her shirt, exposing her breast. He did not stop there, though. Again, he proceeded to attempt the move for a second time, but she batted his hand away from her.
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:
- 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)
- With intent, where it is presumed that the defendant had the purpose of doing and chose to do the act,
- To create apprehension
- 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),
- & 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:
- The defendant acted
- With intent, where general intent to commit the act is enough for civil and intent to cause injury for criminal,
- 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),
- That is harmful or offensive
- & 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
Here, Zeke's actions could potentially qualify for either an assault or battery claim depending on the state's specific laws. Why?
Well, with respect to assault, he acted by grabbing her shirt with the intent to pull down her top to expose her breast to parade-goers, actually doing it the first time and attempting to do it again before being slapped away. It is fairly safe to say that a reasonable person would reasonably apprehend contact because it happened the first time, and the second time not only was he standing close with his hand by her breast but his intention to repeat his actions was pretty obvious. Also, society as a whole would consider that contact harmful or offensive because exposing a private area of the body is personal, and not everyone would do that themselves let alone feel comfortable having someone else do so in public. Maybe Zeke did not intend for the flashing to be harmful or offensive since it was supposedly "all in good fun" according to his rep, but so what? Because society views this as harmful or offensive contact, and the plaintiff reasonably apprehended such contact shown by "scrambling to pull her shirt up" and batting his hand away, a case for assault can be made.
With respect to battery, there could be a similar argument in some jurisdictions since there was actual physical contact as opposed to the simple threat of bodily harm reasonably causing fear of harm. It may not rise to the appropriate level of harm in some jurisdictions, while still others may automatically pair it with assault as one claim. The jurisdictions where battery comes in different degrees and offers relief for something like third degree battery that may not require physical injury is where a separate battery claim could succeed.
Of course, Elliott would have defenses available to him. The most fitting defense to an assault or battery allegation in any jurisdiction here would be mutual consent. Here, he could argue that this was not a one-sided act; both he and the woman consented to the situation for him to grab her shirt, pull it down, and expose her breast to those on the Dallas streets. The evidence showing that the two of them hung out later in the evening could help his defense, but really that is all he has going for him, and it is total weak sauce and not strong enough to combat the woman's potential prima facie case.