Its definition varies from one jurisdiction to the next, but second-degree domestic violence is a felony. Also known as second-degree domestic assault or battery, it involves a person attempting or causing physical harm by any means. This includes the use of any type of dangerous instrument. The victim is a family or household member. In some jurisdictions, the victim can also be a person with whom the perpetrator had a prior intimate relationship of some nature.
A charge of second-degree domestic violence means a perpetrator knowingly caused or attempted to cause any type of physical harm to the victim. This is in contrast to a first-degree domestic violence charge, in which the physical harm caused or attempted is serious or more severe. Consequently, most courts will sustain a charge of second-degree domestic violence even when the physical harm is minimal, such as a slap on an arm or a shove.
Elements of the Crime
These include the attempt or actual physical assault of a household or family member. In the alternative, although the physical contact is not intended, it occurs as the result of the reckless conduct of the perpetrator. (For example, the angry perpetrator throws a dish across the room and accidentally – but recklessly – strikes the victim.) The intended or caused physical harm cannot be significant. The gauging of the severity of the injury or harm is open to interpretation and ultimately becomes a matter for the legal and factual deliberation before the court or the judge and jury, if there is a trial.
Domestic Status Defined
Some jurisdictions utilize a more restrictive definition of domestic status. These states only allow a charge of second-degree domestic violence to proceed if the perpetrator and the victim are members of the same household, are family members or are involved in a current intimate relationship. Other states will recognize these relationships and add individuals who previously were involved in an intimate relationship. If the definition of second-degree domestic violence fails to fit the situation, there are other types of assault and battery crimes that can be charged.
Many experts consider second-degree domestic violence and related crimes of domestic abuse to be cyclic. Many perpetrators face these types of criminal charges multiple times. Three phases have been defined to the underlying dysfunction that gives rise to second-degree domestic violence and other crimes. The Acting Out Phase is when an incidence of aggression, abuse or violence occurs. The Honeymoon Phase is when the perpetrator expresses remorse and sorrow. The Tensions Building Phase is when the batterer becomes tense and angry; the victim attempts to calm the perpetrator.
The prosecution of individuals charged with second-degree domestic violence is aggressive. A common misconception is that the victim of second-degree domestic violence is able to "drop charges." In the past, a high percentage of victims of domestic violence failed to cooperate in the prosecution of these cases or sought to have the prosecutor dismiss these cases. In response, laws have been enacted in most states, through which prosecutions continue whether or not the victim is cooperative. Exceptions have been made to the hearsay rule, which gives police officers wider latitude to testify at trials and hearings for second-degree domestic violence and other types of domestic abuse.
Because second-degree domestic violence is a felony, a person convicted of this charge can face incarceration. A person with no prior criminal record, who has never been charged with any type of domestic violence-related crime in the past, likely will not face jail or prison time after a first conviction. All individuals convicted of second-degree domestic violence must undertake a course of therapy or counseling, including anger management or a related program. If drugs or alcohol contributed to the crime, the defendant will undergo an appropriate substance-abuse program as well.