“Fighting Words” is not necessarily a phrase you would expect to find in a body of law, namely because you wouldn’t even find the phrase in a dictionary. The phrase in and of itself is entirely subjective. Generally, people think of fighting words as offensive or provocative words designed to trigger a response, and subsequently raise one’s temper causing them to lose control.
In theory, they are words where basic human instinct would be to fight back. One would imagine, however, that what separates a civilized society from a primitive society is the discipline to suppress some of our more primitive instincts and default to a moral-based rule of law. From this perspective, it may seem common sense that an individual has a personal responsibility to not be baited in by fighting words, and to instead walk away.
Georgia, however, has an extremely unique state law- fighting words are actually completely valid justifications to strike back, within reason. So long as you are within Georgia state lines, an attorney familiar with this statute may be able to argue that charges pending against you for the crimes of Simple Battery or Simple Assault are invalid if the accuser verbally provoked the altercation.
“Fighting Words” may seem like an informal concept, but it is a concept that the state of Georgia takes extremely seriously. Not only are such words illegal per O.C.G.A § 16-11-39 Disorderly Conduct, but Georgia law takes it a step further and actually permits such words to serve as justification for Simple Battery and Simple Assault via O.C.G.A § 16-5-25, Opprobrious or abusive language as justification for simple assault or simple battery. The specific language of the statute is as follows:
“A person charged with the offense of simple assault or simple battery may introduce in evidence any opprobrious or abusive language used by the person against whom force was threatened or used; and the trier of facts may, in its discretion, find that the words used were justification for simple assault or simple battery.”
However, this does not amount to a hall pass for all violence you feel another was “asking for”. When reviewing and reading the language of the statute carefully, there are some key exceptions:
So let’s first look at the differences between the classifications of Battery and Assault to understand what the specific items are within an assault that may block you from using O.C.G.A § 16-5-25 as a defense, provided the court is able to prove their presence.
Under Georgia law O.C.G.A. § 16-5-23-(a), a person commits the offense of Simple Battery when he or she intentionally makes physical contact of an insulting or provoking nature with the person of another, or intentionally causes physical harm to another.
Under Georgia law O.C.G.A. § 16-5-23.1-(a), a person commits the offense of Battery when he or she intentionally causes substantial physical harm or visible bodily harm to another. The term “visible bodily harm” means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.
Under Georgia law O.C.G.A. § 16-5-24-(a), a person commits the offense of Aggravated Battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.
Under Georgia law O.C.G.A. § 16-5-20, A person commits the offense of Simple Assault when he or she either attempts to commit a violent injury to the person of another; or commits an act which places another in reasonable apprehension of immediately receiving a violent injury.
Under Georgia law O.C.G.A. § 16-5-21, A person commits the offense of Aggravated Assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object which is likely to result in serious bodily injury;
(3) With any object which is likely to result in strangulation; or
(4) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
Tying everything together, a list of disqualifiers for protection under O.C.G.A § 16-5-25 and corresponding examples are below:
Let’s look at some examples of cases where the defendant
forfeited their right to use O.C.G.A § 16-5-25 as a defense, resulting
Bryant v. State, 226 Ga.App. 135, 486 S.E.2d 374 (Ga. App. 1997)
In the case of Bryant, Dwight Bryant and his accuser, whom he had known for six years, visited several nightclubs together. In the early morning hours, they drove in separate cars to her residence, where she left the car she was driving and accompanied him to his home. She refused to have sex with Bryant unless he wore a condom, and he ordered her to leave even though she had no car. Bryant then telephoned the police to have her removed from the premises. An argument ensued, and when the victim accused Bryant of being infected with the HIV virus and having no respect for women, Bryant struck her in the head with his fist. The victim then gathered her belongings and walked to her home. The next morning, when she sought medical attention for her head, a nurse at the hospital informed the police.
Bryant claimed that the story was fabricated and that he never struck the accuser, but ultimately the jury was authorized to believe the testimony of the victim rather than that of Bryant, and he was convicted.
On appeal, Bryant argued that the evidence did not support his conviction because it showed the victim was a criminal trespasser who provoked and insulted him. He relied upon OCGA § 16-5-25, which provides that against a charge of simple battery a defendant may introduce evidence of “opprobrious or abusive language” used by the victim, and the trier of fact may find the attack justified.
It was declared that the jury in this case heard the evidence showing that the victim was asked to leave, and that she used what Bryant contended was “opprobrious or abusive language” against him. O.C.G.A. § 16-5-25 requires nothing more. From this evidence, the jury would have been permitted to find that Bryant was justified in hitting the victim.
Unfortunately, this defense was rejected on the grounds that his original testimony and statement of facts was that he had never struck the accuser, and it was decided that to appeal by saying why he struck the accuser conflicted with his original statement of fact, which was that he did not hit the accuser. The appeal was therefore denied.
A.C., In Interest of, 486 S.E.2d 646, 226 Ga.App. 369 (Ga. App. 1997)
In A.C., an altercation arose by two minors, A.C. and C.D., who attended Griffin High School.
On the day of the incident, A.C. and C.D. were arguing outside the school cafeteria, and C.D. told A.C. “‘I’m going to kick your butt…. where are all your boys? They ain’t here to help you.” A student observing the confrontation testified that at some point C.D. put his hand up without touching A.C., “and then walked off.” According to the student, A.C. then “came up to C.D. and punched him and then they began to fight.”
Kevin Smith was a teacher at Griffin High School at the time of the incident. Smith testified that he ran outside his office when he heard students yelling. He stated that he saw C.D. “on his back … shaking a little bit and his eyes were rolled back and A.C. was stomping him in the head.” Smith then “restrained” A.C. and took him to the office. Two students similarly testified that they saw C.D. lying on the floor and A.C. kicking and stomping him around the face and chest area.
Although A.C. did not testify at trial, he presented testimony from a student that the fight started after C.D. pushed A.C. A.C. contends that his conduct was justified because he was attempting to defend himself against C.D.
Upon review of the appeal and the alleged grounds that “although opprobrious remarks can justify a simple battery under OCGA § 16-5-25, such battery cannot be disproportionate to the opprobrious words used as cited in Collum v. State, 65 Ga.App. 740, 742, 16 S.E.2d 483 (1941) (decided under former Code 1933, § 26-1409). It was for the trier of fact to determine whether the battery in this case was justified by C.D.’s opprobrious words, and the trial court apparently found that it was not.”
Collum v. State, 65 Ga.App. 740, 16 S.E.2d 483 (Ga. App. 1941)
In Collum, defendant, the deceased, and two other companions traveling in an automobile, arrived from Colquit, Georgia, in the City of Americus. All had been drinking to some extent. They went into an eating place, ordered sandwiches, and up to this time they were peaceful. The defendant remarked that he did not know that he wanted a sandwich. The deceased replied: “Go ahead and eat it, you son of a bitch.” The defendant retorted: “Don’t say that anymore.” The deceased repeated the opprobrious words.
The defendant, according to some of the State’s witnesses, facing the deceased (Jordan), struck him one severe blow with his fist in the face and knocked him back and onto the concrete floor. Jordan was rendered unconscious and was carried to a hospital for treatment. An examination was made of Jordan by Dr. Primrose, on his arrival at the hospital. This occurred about eight o’clock in the evening. The next morning Jordan was removed from the hospital by his family and the family physician, Dr. Smith. The injuries caused the subsequent death of Jordan.
The court ruled that “No one will dispute the right of the defendant to assault and beat another for such opprobrious words as Jordan used towards the defendant in the instant case. Code, [O.C.G.A. § 16-5-25], announces this right.
But the law also says, inferentially at least, that the battery cannot be disproportionate to the opprobrious words used, and never to the extent of taking life, intentionally or unintentionally where the battery is excessive. Any step beyond proportionate resentment carries one into the mire of unlawfulness, whether there be one or many blows, and the Code section quoted provides the means by which this question is determined, as follows: “…and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury. The jury determined that the blow inflicted by the defendant was disproportionate to the opprobrious words used and was therefore unlawful, whether inflicted with the fist or other instrument causing Jordan’s death.”
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If you have been charged with Simple Assault or Simple Battery, give Bixon Law a call today to speak to one of our experienced Georgia criminal defense lawyers. We will vigorously defend your legal rights and advocate on your behalf to have your case dismissed or the charges against you reduced. As experienced trial attorneys, we are also not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations, and we invite you to call us at (404) 551-5684 for a free consultation today.