What Is Second-Degree Sexual Assault?

Second-degree sexual assault typically involves an adult victim who could not give consent because of physical or mental incapacitation or an imbalance of power between the perpetrator and the victim. If you or someone you care about has recently been a victim of sexual assault, it’s important to know what qualifies as second-degree sexual assault. 

Second-degree sexual assault is a term used to define certain types of nonconsensual sexual contact. This criminal charge typically involves cases in which the power dynamic between an adult perpetrator and an adult victim is considered unequal at the time of the crime or when the sexual contact resulted in injury to the victim.

Since sexual assault is a crime charged at the state level, legal definitions and penalties will vary by state. What constitutes second-degree sexual assault will depend on many factors, including:

  • The state where the crime was committed 
  • The defendant’s previous criminal history
  • The impact the crime has on the victim and their family members
  • The physical and mental capacity of the victim during the crime

Elements of Second-Degree Sexual Assault

When it’s determined that an adult victim of sexual assault was unable to give consent because of physical or mental incapacitation at the time of the crime or if there was an imbalance of power between the defendant and the victim, the perpetrator will most likely be charged with second-degree sexual assault. Examples might include an adult victim who:

  • Was under the influence of drugs or alcohol
  • Has a developmental disability, mental disorder, or chemical dependence issue
  • Was assaulted by a person in a caregiving role at the time of the assault, such as a client or patient of a health care provider
  • Was assaulted by a person in a position of authority over them, such as an incarcerated individual being assaulted by a guard
  • Was assaulted by a person in a position of trust, such as a teacher
  • Is considered elderly or physically vulnerable
  • Sustained physical injuries as a result of the assault

While the use of physical force is most often associated with sexual assault, perpetrators may also use threats, coercion, blackmail, manipulation, and intimidation to overpower their victims. Agreeing to sexual activities in order to obtain basic needs like shelter, food, or clothing is not consent. Likewise, a perpetrator who threatens to hurt a victim’s family members in order to coerce them into sexual contact is guilty of sexual assault.

Penalties for second-degree sexual assault include long prison sentences and heavy monetary fines. In most states, second-degree sexual assault is a Class A felony, which can receive a sentence of up to life in prison, depending on the circumstances of the case.

Myths Surrounding Second-Degree Sexual Assault

Second-degree sexual assault doesn’t have to include intercourse or penetration to be a crime. The Federal Bureau of Investigation defines rape as the “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by the sex organ of another person without the consent of the victim.”

Although rape is a form of second-degree sexual assault, not all sexual assault cases involve rape. Attempted rape, unwanted sexual touching or fondling of intimate parts of a person’s body, and forced sodomy with an object are all considered sexual assault.

Despite misconceptions, sexual assault by a stranger is far less common than assault by an intimate partner, family member, or acquaintance. The Rape, Abuse, & Incest National Network estimates that 80 percent of sexual assault cases are committed by a person already known to the victim. Being in a current or past intimate relationship with a perpetrator of sexual assault does not qualify as consent for sexual activity. A victim of sexual assault is never responsible for these acts.

woman saying stop

How are sexual assault charges determined?

State legislatures use class designations to describe the severity of sex crimes committed in their states. These designations help judges determine sentencing penalties for individuals convicted of sexual assault.

Most cases of sexual assault are charged as felonies, which are reserved for the most serious criminal offenses and carry the harshest consequences. The National District Attorneys Association gives a state-by-state comparison of statutes that address sexual assault charges.

First-degree sexual assault: Sex crimes involving sexual penetration of a victim’s body and those committed against minors typically receive a classification of first-degree sexual assault and carry the stiffest penalties a state can impose. This is also true when sexual assault is committed in conjunction with other felonies, such as kidnapping, unlawful restraint, or murder.

Second-degree sexual assault: Nonconsensual sexual encounters will often be charged in the second degree when the balance of power is unequal due to an adult victim’s physical, mental, or psychological limitations or when the attack resulted in injury to the victim.

Third-degree sexual assault: This misdemeanor charge is often used when consent between two adults is in question or when the victim wasn’t physically injured.

Statutes of Limitations for Second-Degree Sexual Assault

The amount of time that a victim has to press charges for second-degree sexual assault is called the statute of limitations and is determined by individual states. In some states, the statute of limitations begins from the date that the crime occurred, with a period of three years after.

Other states may begin the statute of limitations period on the date an assault was reported to law enforcement. If the victim waited a significant length of time between the assault and reporting it, there may be a shorter statute of limitations.

In some cases, state legislatures have eliminated the statute of limitations for felony sexual assault crimes, especially when the victim is a vulnerable adult. This allows victims and their families to press charges against perpetrators years or decades after a crime was committed.

researching the law

If you have questions about the statute of limitations for second-degree sexual assault in your state, it’s a good idea to consult a sexual assault victim’s advocate or an attorney who specializes in criminal cases in your area. They will give you specific information as it pertains to your situation and state, guide you on any statutes of limitations that apply to your case, and help you take the next steps to move forward in the legal process.

What To Do If You've Been Sexually Assaulted

Being examined by a medical professional within 72 hours of a sexual assault ensures that you receive treatment for injuries you may have sustained and can also help prevent diseases or future complications. Even if you aren’t sure yet whether you want to press charges, the evidence collected as part of a rape kit can be used later to hold your attacker legally responsible.

In order to allow DNA, blood, hair, and semen to be collected as evidence, it’s recommended that you avoid showering, using the bathroom, brushing your hair, or changing clothes until after you’ve been examined.

Survivors of sexual assault may suffer from depression, anxiety, and post-traumatic stress. Talk to a trusted friend or family member and consider getting help from a professional therapist who specializes in working with survivors of sexual assault. You can also call the National Sexual Assault Hotline and speak to a trained operator who will connect you with resources in your area and provide information on how to report the crime that has been committed against you.

Anxiety and overwhelming fear may prevent sexual assault survivors from reporting a crime. You might be worried that others won’t believe you or that it will be too difficult to relive the traumatic experience. If you know your abuser, you may feel shame or embarrassment at the thought of confronting them in court.

Filing a police report and speaking your truth to others can be an important part of the healing process. Many survivors find that choosing to take legal action helps them feel empowered and regain the control that was taken during the assault. If you choose to seek justice, you can report crimes of sexual assault to your local law enforcement agency. Many of them employ officers who are trained to handle sexual assault cases with compassion and help survivors navigate the legal system.