Criminal Defense Attorney Kevin Kennedy prosecuted assault cases as a prosecutor in the Davidson County District Attorney’s Office. He now uses that background to defend clients accused of offensive-contact assault. Kevin holds his law degree from Vanderbilt Law School and is an active member of the Tennessee Association of Criminal Defense Lawyers.
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Not every assault charge involves an injury. Under Tenn. Code Ann. § 39-13-101(a)(3), a person can be charged with assault for physical contact that a reasonable person would regard as extremely offensive or provocative — a shove, a grab, a poke in the chest — even when no one was hurt. These cases live and die on context, and context is where the defense works.
If you are facing an offensive-contact assault charge in Nashville or Middle Tennessee, call Kevin Kennedy Law Firm for a free, confidential consultation. This page covers only the offensive-or-provocative-contact theory; the firm’s general assault page remains the broad guide, and bodily-injury assault and fear-of-injury assault are covered on their own pages.
The Elements of § 39-13-101(a)(3)
The State must prove two things beyond a reasonable doubt: that the accused intentionally or knowingly caused physical contact with another person, and that a reasonable person would regard that contact as extremely offensive or provocative. Both elements are contestable, and the second — the character of the contact — is where most of these cases are actually decided.
Intentional Physical Contact
The contact must be intentional or knowing. Accidental contact — bumping someone in a crowd, contact during a fall, incidental contact in a confined space — does not satisfy the statute. Where the contact itself is disputed, or where the accused’s purpose is genuinely ambiguous, this element is a real defense.
The Reasonable-Person Standard
The statute does not ask whether the accuser was offended. It asks whether a reasonable person would regard the contact as extremely offensive or provocative. That objective standard matters: an accuser’s unusual sensitivity does not make contact criminal, and the defense can argue the contact — however regrettable — does not meet the statutory bar.
“Extremely” Offensive or Provocative
The statute’s word is “extremely.” Ordinary rudeness, a tap on the shoulder, or contact that is merely annoying does not qualify. The classic examples are contact like spitting, shoving, or grabbing in a confrontational manner. Where the alleged contact falls short of that level, the charge is vulnerable.
No Bodily Injury Required
Subsection (a)(3) requires no injury at all — the offense is the contact itself. That distinguishes it from bodily-injury assault under (a)(1), which requires proof of physical pain, illness, or impairment, and from fear-of-injury assault under (a)(2), which requires proof that the victim reasonably feared imminent bodily injury. The distinction matters because (a)(3) is a Class B misdemeanor while the other theories are Class A.
Classification and Penalties
Offensive-contact assault is a Class B misdemeanor: up to six months in jail and a fine. While that is the lowest assault classification, a conviction still creates a permanent record of a violent offense — which is why these cases are worth defending rather than simply pleading out.
The Evidence in Offensive-Contact Cases
These cases are usually built on the accuser’s account of brief contact, supported — or contradicted — by witness testimony, surveillance footage, and body-camera video. Footage frequently tells a different story than the initial report: who approached whom, what the contact actually looked like, and what happened in the seconds before it. Video should be obtained and reviewed early.
Self-Defense and Consent
Tennessee’s self-defense statute, § 39-11-611, can justify physical contact made in reasonable response to another’s conduct. Consent and mutual-contact situations — a fight both parties entered, contact in a sporting or consensual context — can also bear on whether the contact was criminal at all.
Potential Defenses
- The contact was accidental, not intentional or knowing.
- The contact was not extremely offensive or provocative under the reasonable-person standard.
- The accused acted in self-defense.
- The contact was consensual or mutual.
- Video or witness evidence contradicts the accuser’s account.
- The accused was misidentified.
- The evidence is insufficient to prove the contact occurred as alleged.
Related Nashville Defense Pages
- Nashville Assault Lawyer
- Nashville Assault Bodily Injury Lawyer
- Nashville Assault Fear of Bodily Injury Lawyer
- Nashville Domestic Assault Offensive or Provocative Conduct Lawyer
- Nashville Self-Defense Lawyer
- All Felonies and Misdemeanors
Frequently Asked Questions About Offensive-Contact Assault
Can offensive physical contact be assault in Tennessee?
Yes. Under Tenn. Code Ann. § 39-13-101(a)(3), a person commits assault by intentionally or knowingly causing physical contact with another that a reasonable person would regard as extremely offensive or provocative. No injury is required.
Does offensive-contact assault require an injury?
No. That is what distinguishes subsection (a)(3) from bodily-injury assault under (a)(1). The offense is the contact itself — its offensive or provocative character — not any physical harm.
What does “extremely offensive or provocative” mean?
The statute uses a reasonable-person standard: the contact must be one a reasonable person would regard as extremely offensive or provocative. That is a higher bar than merely unwanted or rude contact, and whether particular conduct meets it is a jury question the defense can contest.
Can touching someone without causing injury be assault?
It can be, if the touching was intentional or knowing and a reasonable person would regard it as extremely offensive or provocative. Incidental contact, accidental contact, and ordinary social touching do not qualify.
What must prosecutors prove under § 39-13-101(a)(3)?
That the accused intentionally or knowingly caused physical contact with another person, and that a reasonable person would regard the contact as extremely offensive or provocative. Both the mental state and the character of the contact can be contested.
Is offensive-contact assault a misdemeanor?
Yes. Assault under § 39-13-101(a)(3) is a Class B misdemeanor, carrying up to six months in jail and a fine — a lower classification than bodily-injury or fear-of-injury assault, which are Class A misdemeanors.
Can offensive-contact assault charges be dismissed?
Yes. These cases often turn on one person’s account of brief contact, and outcomes can include dismissal, diversion, or acquittal where the evidence of intentional contact or its extremely offensive character is weak.
What is the difference between offensive-contact assault and bodily-injury assault?
Bodily-injury assault under (a)(1) requires proof of physical pain, illness, or impairment and is a Class A misdemeanor. Offensive-contact assault under (a)(3) requires no injury — only extremely offensive or provocative contact — and is a Class B misdemeanor.
Is self-defense available in an offensive-contact case?
Yes. Tennessee’s self-defense statute, § 39-11-611, can justify physical contact made in reasonable response to another’s conduct. Consent and mutual-contact situations can also be relevant.
What should I do if I am charged with offensive-contact assault?
Remain silent and contact a defense lawyer promptly. Write down your recollection of the encounter and identify any witnesses or cameras while the evidence is fresh.
Legal references: Tenn. Code Ann. §§ 39-13-101, 39-11-611, and 40-35-111. This page is general information, not legal advice. Penalty provisions change, and the law in effect on the offense date controls.
If you are facing an offensive-contact assault charge in Nashville or Middle Tennessee, call or text Kevin Kennedy Law Firm at (615) 205-7311 for a free, confidential consultation.