Intro to Second Degree Assault

Second Degree Assault

When two sheriff deputies paid a welfare visit to Cheryl Plemmons, they were only going to check in on her well-being. During the visit, Plemmons allegedly threw a pen knife at one of the deputies, so they took her into protective custody in order to take her to a health facility. 

But when she intentionally spat on both of the deputies’ faces, an arrest became necessary. She continued spitting at one of the deputies while under arrest in the police car. Under Colorado state law, intentionally causing a peace officer to come into contact with bodily fluids is punishable as second degree assault. The jury found her guilty.

Assault is one of the most common charges a defendant may face for threatening to inflict physical, and even emotional, harm or injury. While the elements of assault and its different degrees vary from state to state, it is important for both defense attorneys and prosecutors to know how to navigate 2nd degree assault charges, as this usually entails a longer prison sentence or more civil damages.

This article aims to give an overview on what second degree assault means, its most common elements, and possible defenses.

What is Second Degree Assault?

2nd degree assault

Assault in General

There is no federal law that universally defines assault or second degree assault. Assault may have varying definitions from state to state, but in many jurisdictions, assault is committed when:

  1. an intentional act was committed by a person;
  2. such act placed another person in fear of imminent harm.

Even if the defendant’s act did not result in actual or physical harm, it may still constitute an assault, especially if it is intentional. In some jurisdictions, harm can include emotional or psychological harm, not just physical harm. In the case of People v. Plemmons, 2021 COA 10 (Colo. App. 2021), although the act of spitting, by itself, did not physically harm the peace officers, the “intent to infect, injure, or harm” was found to be present.

In California, the element of “capability” is an additional element required for an assault conviction. This means that the accused must have been able to carry out the actual harm being threatened. So, it follows that empty threats may not be sufficient in order to be convicted of assault in jurisdictions with the same requirement.

In the State of New York, meanwhile, an assault charge requires the element of actual harm or injury, not merely placing another in imminent fear of such harm or injury. 

Assault vs. Battery

It’s also important to distinguish between assault and battery. As mentioned earlier, assault is the act of placing another person in fear of imminent harm. If the assault resulted in actual harm, then the perpetrator of the assault may also be charged with battery. Both of these are considered as crimes and torts. Assault and battery each have a distinct set of penalties in some states they are charged separately, while in others they are charged as one offense: “assault and battery.”

Simple vs. Aggravated Assault

Assault may be broadly categorized into simple and aggravated assault.

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

Simple assault, on the other hand, includes assaults that are not as serious as those defined in aggravated assault. Usually, simple assault is classified as a misdemeanor offense. A person found guilty of simple assault, however, may still be imprisoned.

Different Degrees of Assault

what is second degree assault

Assault may also be further categorized into four degrees, usually from first degree to fourth degree, with the first degree being the most severe and serious, and often involving the use of deadly weapons, dangerous instruments, or the intent to kill. As a consequence, first degree assault convictions entail the heaviest penalties. 

Second degree assault is less serious and less severe than first 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? What type of weapon was used?
  • How serious was the injury?
  • How serious was the injury intended by the assailant?

Defenses Against Second Degree Assault Charges

After Plemmons’ conviction, she went to the Colorado Court of Appeals to challenge the constitutionality of the statute she is said to have violated. She argued that interpreting the word “harm” to include emotional and psychological harm is too vague and therefore in violation of the right to due process. The Court of Appeals, however, upheld her conviction.

definition of 2nd degree assault

Since most assault statutes are straightforward, challenging the validity of such laws is not a common legal route. Still, it may be worth raising with other potential defenses against the assault charges. Persons accused of second degree assault may defend against such charges with these common legal defenses:

  • Consent. In a boxing match, for example, both boxers agreed to the possibility of bodily harm, as it is a combat sport. As long as both play by the rules, one cannot charge the other of assault. Otherwise, consent may be availed of as a defense.
  • Self-defense. When the alleged assault happened as a result of the accused defending herself against the threat of harm by another person, she may claim self-defense. In some jurisdictions, this may also extend to defense of a spouse, family member, or a stranger.
  • Entrapment. When a person is induced by law enforcement into committing an assault that he would not have committed, had he not been induced, then the person who commits the said assault may claim entrapment as a defense.
  • Involuntary intoxication. Merely being under the influence of alcohol or drugs would not usually constitute a valid defense against assault. However, when the accused did not get intoxicated on purpose, many jurisdictions will recognize involuntary intoxication as a defense, which would nullify the element of intent to commit harm.
  • Insanity. When the accused is an insane person, or one suffering from temporary insanity at the time the alleged assault was committed, the element of intent to harm another would not be present.
  • Alibi. One may be acquitted of assault charges if he is able to prove that he was not and could not have been at the place where the alleged crime was committed. This is a common defense in cases of mistaken identity, where the victim erroneously identifies another person as their assailant.

In instances where no defense seems to be available, getting the charges downgraded to a lower degree (e.g., from second to third degree) would also work in favor of the accused. Depending on the facts of the case, defense attorneys need to only prove the absence of one or a few elements, such as the seriousness of the harm involved. 

Parties involved may also attempt to reach a settlement, in order to avoid tedious and expensive litigation.


Despite the absence of a universal definition of second degree assault and its elements and penalties, defense lawyers should be aware of the factors that determine how offenses are categorized and the common defenses against them. With the changing needs of the times, the definition of assault has also evolved. 

Had the events of the Plemmons case transpired in 2020, for instance, the mere act of spitting on another person’s face would have posed a greater fear of injury, as COVID-19 could easily be transmitted through droplets found in saliva. This would have meant a more severe penalty due to the seriousness of the potential harm suffered.

In any case, it is important for attorneys and prosecutors to know the principles behind the distinctions between different degrees and categories of assault in their jurisdiction, in order to come up with 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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