This exception to the FTCA was applied in a case where the plaintiff alleged deviant sexual conduct by an Air Force clinical social worker who was treating the plaintiff for "blackouts". The court dismissed the claim by determining that the sexual misconduct constituted assault and sovereign immunity was therefore not waived. Doe v. U.S., 769 F.2d 174 (4th Cir. 1985).

In a Fifth Circuit case, a Naval recruit who alleged that she had contracted a venereal disease from consensual intercourse with an enlisted Naval petty officer sued under the FTCA, alleging fraudulent concealment of the infection by the officer and negligence on the part of the Navy. The court held that the fraudulent concealment of infection claim made the officer’s actions a battery, and therefore fell within the intentional tort exception to the FTCA's waiver of sovereign immunity. Additionally, the claims of the Navy’s negligence were not sufficiently distinct from the battery claim against the officer, and therefore were also not admissible under the FTCA.[ Leleux v. United States, 178 F.3d 750 (5th Cir. 1999)]

In contrast, the assault and battery exception did not apply when there was no intentional wrongful act on the part of a government surgeon in cutting into the plaintiff's right knee when the left knee was supposed to be the one operated on. The court in Lane v. United States, 225 F. Supp. 850 (D.C. Va. 1964) concluded that § 2680(h) was inapplicable because under general tort law, assault must contain an element of intent. Furthermore, the surgeon was negligent, and this negligence should not lose its identity simply because the ultimate injury was the combined result of the negligence and the assault. The plaintiff was allowed to recover damages from the government.

Importantly, the assault or battery must have been committed by the government employee, not by a third party. For example, where an Air Force psychiatrist negligently failed to transmit to a second psychiatrist the history of a mentally ill airman who, as a result, was released and killed his wife, the court said the assault and battery exception was not applicable. The court noted that the assault and battery exception applied only to assault by government agents, not to assault by third parties which the government negligently failed to prevent. Underwood v. U.S., 356 F.2d 92 (5th Cir. 1966).