First, let me apologize for the subject matter of my last two posts, but the intersection of bodily functions and the law has become quite crowded recently.
Yesterday, it was reported that a West Virginia man was pulled over and arrested for DUI. While at the police station having his fingerprints taken, the man "moved closer to the officer and passed gas on him." The investigating officer remarked in the criminal complaint that the odor was very strong. The man is now charged with battery on a police officer, as well as DUI and obstruction. Click here for full details.
I started to wonder whether that would actually be a battery in Illinois.
In Illinois, a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3 (a).
I haven't read the annotations, but I doubt that passing gas equals physical contact.
I think the officer would have a better chance filing a civil suit for battery.
According to the Restatement of Torts 2d, an actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.
I think the cop has a case for the tort of battery. Now the question becomes how much are his damages. I would love to be on that jury.