Vera Institute for Justice, a nonprofit organization based in the United States (U.S.) focusing on criminal reform issues, noted that the following government sources of data on national crime rates showed contradicting reports regarding violent crimes:
- The FBI’s (Federal Bureau of Investigation’s) Uniform Crime Reporting (UCR) program
- The DOJ’s (Department of Justice) Bureau of Justice Statistics (BJS) via the National Crime Victimization Survey (NCVS)
The advocacy group argued that a primary reason for the discrepancy between the two sources is the FBI’s tendency to report national estimates only for high-degree assaults.
In contrast, the NCVS reported that the most common type of violence is a “simple” assault. This crime does not involve bodily harm, robbery, or a weapon and is not a sexual assault.
This scenario shows that classification errors can significantly affect crime trends.
Still, the most damaging impact of misclassification is disproportionate punishment.
Say you or a loved one receives a criminal conviction for second-degree assault. In that case, you likely want to know its legal implications, including the typical length of jail term for the crime.
You might also like to clarify what acts constitute assault of the second degree.
This article discusses the penalties for second-degree assault, particularly jail time.
Learn more regarding second-degree assault — what it is and what to do when you’re charged with it.
Sentencing and Penalties
An assault crime comes with specific prescribed penalties due to its violent nature. However, states differ when classifying types of assault and imposing penalties.
In New York, individuals convicted of second-degree assault may receive these penalties, depending on the crime’s extent:
- Up to seven years in prison; mandatory minimum imprisonment of two years
- At least five years on probation
- Immigration consequences
2nd-Degree Assault (Assault 2)
Individuals charged with an Assault 2 or 2nd-degree assault are generally accused of causing substantial bodily harm or injury to another party.
Substantial bodily harm includes injuries, such as a broken bone or tooth, requiring medical treatment.
Second-Degree Assault (Class 2) – What You Need to Know
Whether you have been arrested for second-degree assault or know someone who faces a Class 2 crime of assault, knowing the details about the charge and its consequences for the people involved can help.
Second-degree assault is the mid-category for assault crimes in most states. Comparing this assault type to others can give you an idea about its basic definition.
For example, some states distinguish a second-degree assault from a third-degree assault by inferring intent.
While third-degree assault involves intentionally harming another individual, second-degree assault usually lacks intentionality.
On the other hand, Class 2 assault crimes are not severe as first-degree assault, which involves the use of a deadly weapon.
However, jurisdictions do not always follow these distinctions.
For instance, Colorado Revised Statutes Title 18 of Criminal Code, Section 18-3-203 states that an assault is a second-degree type if it satisfies the following conditions:
- With intent to inflict bodily harm to another individual, the perpetrator causes a physical injury using a deadly weapon.
- Using a deadly weapon, the perpetrator recklessly causes serious bodily injury to another individual.
- Intending to obstruct a peace officer, firefighter, emergency medical care, or service provider from performing their official duties, the perpetrator deliberately causes bodily harm to another person.
- The perpetrator intentionally administers a substance, drug, or preparation that can cause stupor, unconsciousness, or other physical or mental injury or impairment to another individual without their consent for purposes other than medical or therapeutic care.
It’s a Felony
In the U.S., a felony is a crime punishable by death or imprisonment of more than one year. This definition makes assault crimes, such as second-degree assault, a felony.
For instance, the assault provision of Title 18 United States Code (USC), Section 351(e) divides assaults into two groups:
- Those that result in personal injury are subject to 10 years of incarceration and a fine.
- All other assault crimes are punishable by one year in prison and a fine.
The primary aspect of intent in second-degree assault is that the assaulter followed through on their plan to cause physical harm or injury to the victim.
In the past, while battery referred to actual bodily injury, assault referred to just the intent to injure.
However, in many states today, second-degree assault refers to harmful intent and actual harm committed. This new definition means that the crime is not accidental.
It’s a Crime of Violence
Violent crimes include the following:
These criminal activities involve causing physical injury to another individual, a general definition of assault.
Therefore, second-degree assault can qualify as a violent crime. Some states even consider this behavior a high-level offense with strict mandatory penalties.
An affirmative defense happens when the offender admits to committing the alleged offense with a clarifying statement that they did so by necessity because of an imminent threat to their life.
The threat of injury must be serious and urgent, so using records of verbal threats or heated conversations may not benefit the defendant in court.
An experienced defense attorney can craft a self-defense argument, presenting supporting evidence that the prosecuting side must disprove.
Suppose the court finds the accused individual to have acted in self-defense. In that case, they will likely be acquitted of the assault charges.
Heat of Passion
Defendants claiming to have been in an uncontrollable terror, rage, or fury at the time of the alleged crime can raise this mitigating factor to argue their case.
This argument can be compelling, especially if the defendant has sufficient proof that the victim provoked them.
In U.S. v. Browner, the Fifth Circuit defined the heat of passion as a passion of rage or fear, causing the defendant to lose their usual self-control.
The U.S. v. Browner case focused on circumstances that could provoke said passion in an otherwise sane individual but did not warrant deadly force.
What Are Examples of Second Degree Assault?
Second-degree assault examples include, but are not limited to, the following:
- Striking or attempting to hit another individual with an object with an object
- Spitting on someone intentionally
- Using a vehicle to hit another individual’s vehicle
Say you use an object or a part of your body to make non-accidental, offensive physical contact with another individual. In that case, you could be charged with a second-degree assault crime.
Types of Second-Degree Assault in the U.S.
Jurisdictions categorize second-degree assault crimes in the U.S. based on the nature of the act. Below are three variants of this crime of assault.
1. Intent to Frighten
“Intent to frighten” counts as second-degree assault. Say a person intentionally intimidates someone else by threatening forcible physical contact or physical harm. In that case, the perpetrator will likely get a second-degree assault charge.
For example, an agitated person wielding a hammer exhibits an intent to frighten.
2. Attempted Battery
Someone attempting to commit battery or assault may be charged with second-degree assault, even if they never touch the alleged victim.
This assault type refers to attempted violent physical contact or physical harm. For example, if John tries to punch Jane but misses, the former could still get an attempted battery charge.
Suppose the assault resulted in an actual bodily injury. In that case, the perpetrator may get assault and battery criminal charges.
State laws usually consider these crimes different and impose distinct punishments for each. Some states allow prosecutors to prosecute the defendant for both offenses (assault and battery) separately.
Again, the usual penalty for committing assault of the second degree is imprisonment.
In New York, this criminal offense can result in imprisonment for a maximum of seven years. Moreover, the judge will likely mandate a 2-year minimum prison sentence since the crime is a violent felony.
Post-release supervision or probation may also apply once the individual convicted of second-degree assault returns to society.
New York mandates 1 1/2 to 3 years of post-release supervision for committing this crime.
Fines, Fees, and Restitution
Aside from imprisonment, people who are guilty of second-degree assault must pay a court-set fee to the state.
Federal law sets the fine to a maximum of $500,000 for a felony.
The judge may also require the defendant to pay an amount to the victim to compensate for the damages caused.
Orders of Protection
As part of the criminal procedure, the prosecutor may request the judge to grant an order of protection for the victim.
Simply put, an order of protection requires the alleged perpetrator to stay away from the alleged victim. Such mandates usually specify what the defendant is allowed to do in relation to the complainant.
For example, a protective order may prohibit the defendant from going near the victim, the victim’s children, or the victim’s workplace.
Getting convicted of a second-degree assault can have long-term consequences beyond imprisonment.
Even if the defendant gets the minimum prison sentence, the conviction’s consequences can last years after release. For instance, they might have to serve probation, pay fees and fines, and make restitution.
In addition, the defendant will have a criminal record, making finding work and other aspects of their life harder.
The convicted individual might even get barred from working specific jobs, like teaching or practicing law.
They might also be banned from owning a gun, serving in the military, or serving on juries.
Lastly, the defendant may no longer be eligible for government benefits like welfare and housing.
Definition of Assault and Battery in the Second Degree
A second-degree assault and battery charge can mean the defendant caused moderate bodily harm to the victim.
Moderate bodily injury includes any of the following outcomes:
- Long-term loss of consciousness
- Damages resulting in treatments that require anesthesia
- Short-term and moderate disfigurement
- Short-term impairment of physical function
- Fractures and dislocations
What Conduct Leads to Assault and Battery in the Second Degree?
Assault and battery in the second degree can be classified into these four categories:
- Physical harm
- Nonconsensual private touches and threats of reasonable harm
- Harm and nonconsensual touch
- Threats of reasonable harm
What Does It Mean to Be Charged With Battery and Assault in the Second Degree in the U.S.?
States vary regarding the definition and consequences of this criminal charge. Still, it will help to read an example to help defendants prepare for their cases.
In South Carolina, you commit assault and battery in the second degree if you unlawfully injure another person.
You can also get this charge if you offer or attempt to injure them with the present ability to do so, and the act resulted in any of the following situations:
- Moderate bodily injury to another person
- Nonconsensual touching of a person’s private parts, either under or above clothing
Who Should I Call if I’ve Been Charged With Battery and Assault in the Second Degree?
If you have been charged with assault and battery in the second degree, you need a lawyer immediately.
Consult a criminal defense attorney to help you with your case. Consider someone with experience in second-degree assault and battery defense.
State and nonprofit legal clinics can offer free consultations if you cannot afford a private lawyer.
Second-Degree Assault Cases in the U.S.
Below are two cases of assault in second-degree to consider:
- Guarro v. United States (1956): This case showed that merely putting another in the apprehension of harm, whether the defendant intends to inflict or is capable of inflicting that harm, constitutes an assault.
- Ladner v. United States(1958): Some assault charges require the establishment of a reasonable suspicion of immediate damage to the victim.
Second Degree Assault Domestic Violence
The Washington State Legislature considers second-degree assault (Assault 2) a Class B felony. This crime includes domestic violence.
Assault Two – Strangulation or Suffocation
The most frequently filed subsection of Assault 2 in domestic violence cases is an assault by strangulation or suffocation.
2nd-Degree Assault U.S. First Offense
Suppose you’re getting charged with a second-degree assault in the U.S. for the first time. In that case, the following discussions can help you manage your expectations regarding the subject and its potential outcomes.
“Will I Go to Jail or Prison in Maryland for an Assault?”
Yes. Suppose you have been charged with second-degree assault in Maryland. In that case, you may have to serve a maximum of 10 years of incarceration.
What if the Other Person Wants to Drop the Case?
Generally, the state handles the allegation of criminal assault against the defendant. Therefore, the victim dropping the charge does not guarantee case dismissal.
Assault charges depend on the following sources:
- A police officer’s sworn statement of charges
- A complaint submitted to the commissioner
What Type of Evidence Could the State Have?
The state can provide the following proof to prosecute the defendant:
- Witness or victim statements: These statements are inadmissible in court as “hearsay.”
However, the statement might be admissible for limited reasons if exceptions exist to the hearsay rule.
For example, when a law enforcement officer is a witness, the court will likely accept the statements as testimony.
- Photographs: Officers are trained to take pictures of victims’ bodily injuries in assault cases.
The state often uses these photographs as evidence. However, a photograph taken without testimony does not usually suffice in court.
- Body-worn cameras: Many law enforcers in the U.S. have body-worn cameras. The state’s attorney often uses camera footage in court along with the victim’s statement on the scene.
Although these statements cannot prove a case alone, they can help if a victim is reluctant to testify.
“How Can We Defend My Case?”
Your defense lawyer can argue your case in the following ways:
- Consent: Neither party can charge the other with assault if they play by the rules. For example, the state regulates physical combat, such as martial arts and boxing matches. The defendant can use consent to benefit their case.
- Self-defense: People may claim self-defense if they defend themselves against a threat of harm from another individual.
Using force to defend family members, strangers, or spouses is legally permissible in some jurisdictions.
- Entrapment: When law enforcement forces a person to commit an assault that the individual would not have otherwise done, the person can claim entrapment as a defense.
- Alibi: A person may receive an acquittal for assault charges if they proved that they were not and could not have been in the place of the alleged crime.
A mistaken identity defense occurs when the victim wrongly identifies another individual as their attacker.
“Will This Second Degree Assault Go on My Criminal Record?”
Like other criminal convictions, any assault conviction would appear on your criminal record.
Suppose the court dismissed the case against you. In that case, your assault lawyer can expunge the accusation from your record on the same day the court hearing occurred.
A criminal defense lawyer can do the same for an acquittal (not guilty) verdict.
What Long-Term Consequences Could This Have?
As shown above, individuals convicted of assault may have to serve probation after release. Therefore, they might have to obey the following conditions — under the supervision of a probation officer — to avoid reentry to prison:
- Submit to drug screening.
- Complete an abuser intervention program.
- Participate in mental health therapy sessions.
- Submit to home visits.
- Avoid possessing firearms.
- Comply with a protective order.
- Have a stable job or income source.
“What if I Have Both First and Second Degree Assault Charges?”
A preliminary hearing will likely be scheduled if you have been charged with first- and second-degree assault.
This judicial proceeding determines whether probable cause exists for the two felony charges and if the state wants to proceed with an indictment for both or just with one.
Prosecution and Defense
The severity of punishment for second-degree assault charges depends on the prosecution’s ability to determine and prove the offender’s intent. Prosecutors will do so by providing supporting evidence to the court.
Consequently, you must seek legal advice from a competent lawyer to determine which argument below can benefit your case:
- Duress (being forced to commit the assault by another)
- Lesser of 2 evils or justification (the assault was necessary to protect public or private property)
- No or insufficient intent
- Executing public duty
- Heat of passion
Other Assault Charges
As with other crimes, assault charges usually have categories depending on the nature and impact of the criminal act.
Here are two additional assault charges to consider:
1st Degree Assault
This assault charge typically happens when the defendant has the intent to inflict great bodily harm involving one of the following criminal behavior:
- Assaults someone with a gun or any deadly weapon or in any way likely to cause significant physical injury or death
- Transmits HIV (human immunodeficiency virus) to a child or vulnerable adult
- Exposes or causes the victim to take poison or any toxic or damaging substance
Many states consider assault in the first degree to be a class A (high-level) felony.
3rd Degree Assault
Assault in the third degree takes two primary “forms.”
An individual is guilty of this offense if they intend to cause physical injury or “substantial pain” to someone else.
Meanwhile, the second theory of this crime appears in NY Penal Law 120.00(2). Acting recklessly and causing “substantial pain” to another individual is a violation of this criminal code.
Penalties for the Other Levels of Assault
Again, penalties for various levels of assault vary depending on the region’s statutes and sentencing guidelines.
To give you an idea, here’s how the state of Washington penalizes each charge:
1st Degree Assault (Assault 1)
First-degree assault is a Class A felony in the state of Washington. A conviction can result in 93-123 months of jail time for a first-time offender and life imprisonment for a repeat offender.
3rd Degree Assault (Assault 3)
This assault is a Class C felony and carries a sentence of up to 5 years in jail and fines of up to $10,000.
4th Degree Assault (Assault 4)
Fourth-degree assault, a gross misdemeanor, is punishable by a jail sentence ranging from 0 to 364 days with a maximum fine of $5,000.
How to Get an Assault Charge Dismissed in U.S.
In the U.S., assault cases fall into the discretion of the state’s attorney. Thus, you often see “The United States v. [insert defendant’s name]” when reading case texts involving assault charges.
So, the defendant must persuade the state attorney to drop the charge of assault. Unfortunately for the defendants, state prosecutors do not usually dismiss charges before the trial begins.
The state may dismiss the criminal charge if the victim and the defendant agree to do so.
However, dismissing assault charges lies solely at the discretion of the state’s attorney handling the case.
1. How long do you go to jail for assault in the U.S.?
As explained above, jail time for second-degree assault may vary depending on sentencing guidelines and the severity of the crime.
That said, assaults can land you in jail or prison for at least one year, ten years, or more.
2. How much time do you get for 2nd-degree assault in the U.S.?
The answer to this question may vary depending on the state. Here are examples of estimated time individuals convicted of second-degree assault may have to serve:
- Maryland: Maximum of 10 years in prison
- New York: Maximum of seven years in prison
Note that the crime’s context can modify prison time. For instance, New York courts can sentence you to up to 15 years in prison for causing serious physical injury to another.
3. Can I claim self-defense if I was threatened?
Yes. In common law, “castle doctrine” says people can use reasonable, even deadly, force to defend themselves from trespassers. State legislatures have codified and expanded this principle.
4. Do I need to have been attacked to use self-defense?
The answer to this question depends on the state’s specific policy regarding self-defense.
For example, Florida statutes protect the citizens’ right to stand their ground, meaning to meet force with force, when there’s reasonable cause to believe that someone is about to inflict physical harm against them.
However, the same guideline added that standing one’s ground applies to preventing forcible felonies. This clause indicates you don’t have to be the victim of an attack to use self-defense.
5. What if the contact was accidental?
Say the physical contact was accidental, and you were not recklessly putting the person in harm’s way. Your lawyer could build a strong case for accidental contact and negotiate with the prosecuting side for a less severe criminal charge.
6. Is mutual combat a good defense?
A “mutual combat” argument can sometimes be an effective defense against an assault charge.
Mutual combat happens when the fight is consensual. That said, most states consider this activity to be disorderly conduct.
So, even if you win based on a mutual combat argument, you might still get charged with a different or related crime.
7. How much evidence is needed for a conviction?
Like other criminal cases, there can be two types of evidence courts consider when convicting (or acquitting) the defendant:
- No witness case: In many cases, the only witness to the alleged second-degree assault is the alleged victim. This factor can create a “He said, She said” (hearsay) situation, making it more challenging for the claimant to argue their case.
However, prosecutors can still aggressively pursue the initial charge, hoping for a conviction. For example, they can use photos or a medical record of the victim’s injuries.
- Witness case: Third-party witness statements in police reports can significantly weaken the defendant’s case, resulting in a conviction.
8. Is the deck stacked against me?
Suppose you got charged with second-degree assault and have valid explanations, like “I did so to defend myself” or “We consented to the fight,” but you are not afforded a good representation.
In that case, the prosecuting side might build an unfair and one-sided case against you, making it more challenging for you to secure a favorable outcome.
9. What if I already confessed to committing an assault?
Even if your situation appears hopeless, you can always mitigate the legal consequences and reduce criminal charges.
This opportunity applies even when you have already admitted guilt to authorities.
Competent lawyers can lessen the severity of penalties by demonstrating the defendant’s positive contributions to the community and history of law-abiding conduct to the court.
10. When is an assault considered domestic violence?
While they vary regarding specifics, states usually have similar definitions for domestic violence.
In Maryland, domestic abuse happens when someone related to the victim commits any of the following acts:
- First- and second-degree assault
- First- and second-degree rape
- Attempted rape in any degree
- Attempted sexual offense in any degree
- Revenge porn
11. How do I avoid an assault conviction?
The best way to avoid an assault conviction is to have a clear and factual alibi that you did not commit the alleged crime.
Assault allegations are very serious. You should consult an experienced criminal lawyer before giving any interviews or making any statements.
In many cases, unrepresented defendants get lured into making statements taken out of context and later used against them.
1. Understanding National Crime Data
2. Assault in the Second Degree: NY Penal Law 120.05
3. What Happens in a Felony Case
4. Colorado Revised Statutes Title 18. Criminal Code § 18-3-203. Assault in the second degree
5. 1610. Assault– 18 U.S.C. 351(E)
6. Heat of Passion
7. Section 70.02 Sentence of imprisonment for a violent felony offense
8. Section 70.45 Determinate sentence; post-release supervision
9. 18 U.S. Code § 3571 – Sentence of fine
10. 16-3-600. Assault and battery; definitions; degrees of offenses
11. RCW 9A.36.021
12. § 3-203. Assault in the second degree
13. Assault in the Third Degree: NY Penal Law 120.00
14. Self-Defense and ‘Stand Your Ground’
15. Restraining Orders