The tentacles of the law have been stretched even to the Holy Bible. The plaintiff in this potential law suit is the messiah as professed by Christians. The set of facts to be relied on by the writer has been provided by an eye witness Mark. The written testimony of Mark can be found in the Bible, specifically, Mark chapter 5: 25-34.
“ And a certain woman, which had an issue of blood twelve years, And had suffered many things of many physicians, and had spent all that she had, and was nothing bettered, but rather grew worse, When she had heard of Jesus, came in the press behind, and touched his garment. For she said, If I may touch but his clothes, I shall be whole. And straightway the fountain of her blood was dried up; and she felt in her body that she was healed of that plague. And Jesus, immediately knowing in himself that virtue had gone out of him, turned him about in the press, and said, Who touched my clothes? And his disciples said unto him, Thou seest the multitude thronging thee, and sayest thou, Who touched me? And he looked round about to see her that had done this thing. But the woman fearing and trembling, knowing what was done in her, came and fell down before him, and told him all the truth. And he said unto her, Daughter, thy faith hath made thee whole; go in peace, and be whole of thy plague.”
The facts as presented fall within the civil law category. The area of law is the law of torts. Our case is a classic example of battery, an example of intentional wrongful act that causes harm to a person. It suffices to say that battery in this article has nothing to do with “battery” as used in physics.
Sartre, a French philosopher, described humans as stalkers of definition. However, in understanding battery, a definition need not be given. Every tort has elements and battery is no exception. The elements of the tort are:
- Direct act of defendant
- Act must be voluntary
- Defendant acted intentionally or negligently
- Defendant must make physical contact with person of the defendant
- Lack of consent by the plaintiff
- Positive act of the defendant
To establish that battery was committed on Jesus, these six elements must be proven.
To begin with, the plaintiff must establish that the defendant’s act is the immediate cause of his complaint. In this case, the act of the “woman” which is the direct cause of the complaint of Jesus is the touching of his garment.
Secondly, the plaintiff must also prove that the defendant’s act was voluntary. Voluntary as used does not look at whether the defendant acted willingly but whether he was in control of his act. In our case, the “woman” per the facts had control over her actions. She came behind Jesus and touched his garment.
The plaintiff must also prove the state of mind of the defendant by showing that the defendant’s act was either deliberate or reckless. In this case, the ‘’woman’’ even before meeting Jesus had said ‘’If I may touch but his clothes, I shall be whole’’. This clearly shows that touching the garment of Jesus was deliberate.
The fourth element which must be proved by the plaintiff is that the defendant made contact with his person. Contact can be by person to person or instrument to person. In the case of Cole v Turner, Holt CJ held that the least touching of another in anger is a battery even though it does not result in injury. In the subsequent case of Collins v Wilson, the court was of the view that the touch need not be hostile. The material question in this case is whether touching the garment of Jesus constitutes making contact with the person of Jesus. In the case of Pursell v Horn, the defendant threw water on the plaintiff and the latter sued in battery. The court held that throwing water on the clothes of a person was battery only if there is also a transmission of force to the body of the person. Is it then the case that where the water makes contact with only the clothes it isn’t battery? In the case of R v H (2005) 2 All ER 859, the defendant grabbed the complainant by the bottom of her tracksuit and tried to pull her towards him. Lord Woolf CJ in his judgment noted that where a person is wearing clothes, touching the clothing constitutes touching the person for the purpose of the offence. The latter case of R V H is a criminal case and it doubtful whether a court seized with jurisdiction in a civil court would apply the holding to a case under battery. However there is still the possibility that a civil court presented with our facts may rely on R v H, and hold that touching the hem of the garment of Jesus constitutes making contact with his person.
The plaintiff must also prove that he did not consent to the contact. The plaintiff may show that he didn’t expressly consent to the contact or it was not non- hostile contacts incidental to living in a community or the contact was not allowed by law. The disciples in the facts probably with knowledge on tort law, asked Jesus ‘’ Thou seest the multitude thronging thee, and sayest thou, Who touched me? ‘’ This question reflects the principle that consent is assumed to all those ordinary contacts which are necessary to life. In our case there was a multitude surrounding Jesus and hence any contact made to his person by someone passing by to see the messiah would be covered by this rule. The situation of the woman with the issue of blood can be argued on a different footing. She waited for Jesus to come, then maneuvered her way through the crowd and touched the hem of his garment. Jesus in fact expressed his displeasure in being touched when he asked “who touched me?”. It can be argued in this context that Jesus did not consent to the woman touching his garment as her touch was not incidental but premeditated.
Finally to constitute a battery the plaintiff must show that an act was done by the defendant and not failure or refusal to act. In our case the act of touching the hem of Jesus garment was a positive act.
In conclusion, Jesus as our potential plaintiff may have a cause of action in battery. As discussed his case mainly hinges on the elements of physical contact and lack of consent. To the extent that touching his garment constitutes touching his person and the fact that he did not consent to the woman’s premeditated touch then it is battery.
It is, however, doubtful if Jesus would bring an action since after the woman had confessed to touching his garment he said unto her, “Daughter, thy faith hath made thee whole; go in peace, and be whole of thy plague.”