The difference between the two offenses is whether the victim was visibly hurt.
The Two Offenses
Simple battery under OCGA 16-5-23 is committed by intentionally making physical contact of an insulting or provoking nature, or by intentionally causing physical harm. Battery under OCGA 16-5-23.1 requires more. As the Court of Appeals put it in Foston v. State, 342 Ga. App. 508 (2017), “[a] person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.”
Each becomes a family violence offense when committed between the family and household members the statute lists – OCGA 16-5-23(f) for simple battery, OCGA 16-5-23.1(f) for battery.
What Counts as Visible Bodily Harm
For example, in Foston, the defendant punched the mother of his three children, splitting her lip; a neighbor and the responding officer both saw the blood. Similarly, in Moore v. State, 356 Ga. App. 752 (2020), a husband struck his wife across the side of her face and a nurse documented redness, abrasions, and bruising. Both were family violence battery.
Pierre v. State, 360 Ga. App. 95 (2021), shows the other side. A husband swung at his wife and struck the arm she had raised to cover her face. The jury convicted him of family violence simple battery and acquitted him of family violence battery.
Why the Distinction Matters
A first family violence battery conviction is a misdemeanor. Under OCGA 16-5-23.1(f)(2), quoted in Foston, on a second or subsequent conviction “the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.”
Where both offenses come out of one continuous incident, they merge. In Lopez v. State, 355 Ga. App. 319 (2020), four convictions arising from a single fight merged into one for family violence battery.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!