Intro to Second Degree Assault

Second degree assault happens when an individual intentionally causes or attempts to cause physical injury to another, and states may classify it as a felony or misdemeanor. For instance, in Colorado, second degree assault is a felony punishable by up to 12 years in prison and $500,000 in fines. Yet, in Maryland, the assault is considered a misdemeanor with a penalty of up to 10 years. 

Consider this real-life case. 

Two sheriff deputies paid a welfare visit to Cheryl Plemmons to ascertain her well-being. During the visit, Plemmons allegedly threw a pen knife at one of the deputies, so they took her into protective custody, intending to take her to a health facility. 

But an arrest became necessary when she spat on both deputies’ faces. She continued spitting at one of the deputies while under arrest in the police car. Under Colorado state law, intentionally causing an officer to come into contact with bodily fluids is punishable as second degree assault. At trial, a jury found her guilty.
Second degree assault is one of the most common charges a defendant may face for threatening to inflict physical or emotional injury to another.

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What Is Second Degree Assault?

No federal law universally defines assault or second degree assault, but different state law considers various aspects of the defendant’s actions to determine if an assault occurred. 

In general, however, states consider the following elements to qualify as an assault:

  • Intent — The defendant must demonstrate an intention to cause physical harm or offensive contact. 
  • Threat — The perpetrator must threaten or attempt to cause injury or improper contact. 
  • Apprehension — The victim must fear the defendant will follow through with the threat. 

Even if the defendant’s actions do not result in actual or physical harm, it might still constitute a second degree assault if the intention was to cause injury or fear. In some jurisdictions, injury can include emotional or psychological harm and not just physical damage. 

During the trial of the Plemmons case, although the act of spitting did not physically harm the officers, the jury found that she intended to cause harm or offensive contact to the deputies. 

In California, “capability,” or the ability to carry out a threat, is an additional element required for a second degree assault conviction. An accused must be able to carry out the actual harm, meaning empty threats may not be sufficient grounds for a conviction of assault.

For the state of New York, a second degree assault charge requires the element of actual harm or injury, not merely placing another in imminent fear of injury.

Assault vs. battery

It’s also essential to distinguish between assault and battery. As mentioned earlier, assault places another person in fear of imminent harm. If the assault resulted in actual injury, then the perpetrator of the assault may also be charged with battery. State law considers both crimes and torts, each with a distinct set of penalties. In some states, officials will prosecute the accused person separately for both offenses, while in others, as one offense – assault and battery.

Simple vs. aggravated assault

States categorize assaults into simple or aggravated.

Aggravated assault, classified as a felony, is an assault that involves intent to cause serious injury through the use of a firearm or deadly weapon or other aggravating circumstances. It may also include using hands, arms, feet, fists, and teeth. Penalties and fines are usually heavier for aggravated assault.

Simple assault involves intentional acts to cause fear or apprehension of physical harm or offensive contact. Such an assault is not as severe as those defined in aggravated assault, and state law may classify it as a misdemeanor offense. A person found guilty of simple assault, however, may still be imprisoned.

Different Degrees of Assault

The law categorizes assault into four degrees, usually from the first to the fourth. The first is the most severe and often involves deadly weapons, dangerous instruments, or the intent to kill. As a consequence, first-degree assault convictions entail the heaviest penalties. 

Third-degree assault is less serious and less severe than second degree assault. Second degree assault is still a felony charge, which, in most states, entails a permanent record for those convicted.

Although these categorizations may vary depending on the jurisdiction, it usually involves these four factors:

  • Did the assailant use a weapon or any object used as a weapon? 
  • If so, what type of weapon was used?
  • How severe was the injury?
  • To what extent did the assailant intend the injury?
  • To what extent did the assailant demonstrate the ability to cause harm or injury?

Defenses Against Second Degree Assault Charges

After Plemmons’ conviction, she went to the Colorado Court of Appeals to challenge it. Her primary defense was that she was involuntarily intoxicated by the medication she was on at the time of the incident. However, the trial jury rejected her defense and found her guilty, and the court of appeal also upheld the conviction. 

Since most assault statutes are straightforward, involuntary intoxication is unlikely to hold up as a defense. The reason being merely being under the influence of alcohol or drugs would not usually constitute a valid defense against a second degree assault case. However, the defense may hold up if the accused can show that another person administered the substance causing intoxication without their knowledge or consent, and it altered their mental state, including their judgment, cognition, or self-control. 
For Plemmons, her claim that her medication caused the intoxication could not hold up. So what is a viable defense for second degree assault?

  • Consent – In a boxing match, for example, both boxers understand that bodily harm is possible, as it is a combat sport. As long as both play by the rules, one cannot charge the other with assault. Otherwise, a defendant can leverage consent as a defense.
  • Self-defense — When an alleged assault happens because the accused was defending herself against the threat of harm by another person, she may claim self-defense. Using force to protect a spouse, family member, or stranger may be viable in some jurisdictions.
  • Entrapment — When law enforcement officials force a person into committing an assault that he would not have otherwise done, the person who commits the assault may claim entrapment as a defense.
  • Involuntary intoxication — Insanity — An accused person who is insane or was suffering from temporary insanity while committing the element of intent to harm another would not be present.
  • Alibi — One may be acquitted of assault charges if he can prove that he was not and could not have been where the alleged crime was committed. Such a defense is common in cases of mistaken identity, where the victim erroneously identifies another person as their assailant.

Depending on the facts of the case, a defense attorney may simply try to prove that the defendant did not intend to cause harm or that circumstances forced them to inflict injury. Moreover, if no defense seems available, getting the charges downgraded to a lower degree (e.g., from first to second degree) would also favor the accused. Parties may also attempt to reach a settlement to avoid tedious and expensive litigation.

Also read:Can A Felon Leave the Country?

Convicted felons may face travel restrictions that limit their ability to move freely. However, in most cases, felons that have served...


Despite the absence of a universal definition of second degree assault and its nuances and penalties, defense lawyers should be aware of the factors that determine how offenses are categorized and the common defenses against them. 

Although potential defenses for second degree assault depend on the circumstances of a case, involuntary intoxication is usually not a viable defense. Unless, of course, the accused can show that the intoxication happened without the knowledge or consent of the defendant, and it significantly altered their mental state. 

Furthermore, factors likely to cause harm to an individual change, as does the definition of the second degree assault. For instance, had the events of Plemmons’s case transpired at the onset of the pandemic in 2020, the mere act of spitting on another person’s face would have posed a greater fear of injury, as droplets found in saliva easily transmit COVID-19. Such an action would have meant a more severe penalty due to the seriousness of the potential harm.

In any case, attorneys and prosecutors need to know the principles behind the distinctions between different degrees and categories of assault in their jurisdiction to deliver optimal results for their clients.

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Legal Writer at Lawrina. Yevheniia browses through the most interesting and relevant news in the legal and legaltech world and collects them on Lawrina’s blog. Also, Yevheniia composes various how-to guides on legaltech, plus writes product articles and release notes for Loio, AI-powered contract review and drafting software.

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