Is Spitting On Someone An Offence?

by Ugur Nedim
No spitting

While there is no doubt that spitting on someone is impolite, you may have wondered whether or not it is an offence.

The answer is yes, spitting on someone without consent is an offence because it is classified as a ‘battery’ which means unauthorised touching of another person.

So while not right up there with murder, spitting at someone is against the law as long as you intend to spit at or on another person, or are reckless as to whether your spitting may contact another person.

With the requisite intention, it may therefore fall under the general category of common assault, which means that no actual harm needs to have been suffered.

Even a threat of immediate harm, or force (under which spitting on someone can be categorised) is enough to make an action fall under the category of assault, if it was accompanied by:

  • An intention to put another person in fear of unlawful violence or no regard to
    the fact that the victim may have felt in danger because of it; and
  • There was no consent from the other person.

Unauthorised spitting is a ‘battery’ along with a range of other indirect contact such as throwing an object at another person or shining a light into their eyes.

It can still be an offence even if you miss, so long as the victim apprehends immediate unlawful violence.

Under section 61 of the NSW Crimes Act, common assault is an offence and punishable by up to two years in prison.

While spending two whole years in jail for spitting at someone is not very likely, it has certainly seen more than a few people arrested and some even receiving jail time, if a police officer is the intended target.

Spitting at police is treated very seriously and one woman earlier this year was arrested for shouting abuse and spitting at an officer.

Her criminal lawyer said that she was drunk and didn’t like the way the police were treating her.

She ended up with a $1000 fine.

Spitting also carries other penalties like fines or community service.

It may also carry the possibility of a criminal conviction, which could seriously affect your present and future employment as well as travel to other countries.

There are some defences for spitting, for example no intention to inspire fear, or done in anger.

The main defences for assault are self-defence, duress and necessity, duress although it may be difficult to think of a whole lot of situations where spitting would plausibly fulfil the criteria of duress (ie being forced to spit) or necessity (having to spit to get out of an emergency situation).

In other parts of Australia the punishment may be even harsher: under the Queensland Criminal Code, spitting at a police officer can entail a 14-year prison sentence.

Also in Queensland, a former Australia’s Got Talent contestant spat on her hairdresser after being asked to pay extra on her bill. She was fined $2000.

In Victoria, another woman who spat at police was condemned by the magistrate, Cynthia Toose. Ms Toose called her conduct disgraceful.

The 31-year-old offender was apprehended by police after stealing bags and clothing from retail stores.

She was arrested for being intoxicated, but resisted arrest and spat at police.

The judge, after reminding her how serious her crimes were fined her $300 and a suspended sentence of four months imprisonment.

Perhaps more seriously, is the threat of contamination and spread of germs or bacteria that may be transmitted during spitting on someone else.

One American man spat blood directly in the face of a police officer after stating that he was contagious with hepatitis C.

While the police officer was fine, the offender was charged with “battery by body waste.”

This is probably not the way that he introduced himself to his new prison inmates, though he had plenty of time to get cosy with them, receiving six months in prison for his offence.

And while spitting on someone is an offence under some circumstances, spitting on the street is likely not criminal, although you may be up for a fine for spitting in some public locations like train stations, parks and public transport.

It may also classify as a public disorder offence, if done near a school of specified location, but it won’t be criminal unless done aggressively and directed against a person or property.

Criminal or not, spitting at someone isn’t nice – and with the kinds of penalisation you might be up against for what you consider a rather minor offence, it is not worth it.

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Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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