In the time of the coronavirus, is coughing or spitting on someone simple assault?

There’s been reports in recent days like this one—State police cite 2 people in Westmoreland County for ‘purposely coughing’ on workers—which raise the question of whether coughing or spitting on someone is enough to rise to the level of simple assault.  Under normal circumstances, the answer may generally be no, but we’re not living in normal circumstances, and the answer is as uncertain as the virus we’re all contending with.  The question posed nonetheless is an interesting one, and the words of the simple-assault statute can be our guide to coming closer to an answer.

Pennsylvania defines the crime of simple assault in Section 2701 of the Crimes Code (Title 18).  The entirety of the statute reads as follows:

Offense defined.– Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:

  1. attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
  2. negligently causes bodily injury to another with a deadly weapon;
  3. attempts by physical menace to put another in fear of imminent serious bodily injury; or
  4. conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.

Grading.–Simple assault is a misdemeanor of the second degree unless committed:

  1. in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree; or
  2. against a child under 12 years of age by a person 18 years of age or older, in which case it is a misdemeanor of the first degree.

Immediately, under the scenario of coughing or spitting on another, subsection (2) and (4) don’t apply because we’re not dealing with a “deadly weapon” nor is a “hypodermic needle” at issue.  Therefore, the focus narrows down to subsection (1) and (3), and these two questions arise:

    • Is the act of coughing or spitting on another an attempt to cause bodily injury, or the intentional, knowing, an reckless cause of bodily injury?
    • And is the act of coughing or spitting on another an attempt by “physical menace” to put another in fear of imminent serious bodily injury?

Noticeably, these questions themselves unfortunately raise even more questions because of the bolded terms above.  For instance, what is the difference between “bodily injury” and “serious bodily injury”?  And what does “physical menace” mean?  

Luckily there’s more law to guide us to finding our answer.

Section 2301 of the Crimes Code defines the terms “bodily injury” and “serious bodily injury,” and Pennsylvania’s Standard Criminal Jury Instruction, 15.2701D, is helpful in understanding what the law means by “physical menace.”  Let’s start though with the difference between bodily injury and serious bodily injury.  The law defines those terms this way:

“Bodily injury.” Impairment of physical condition or substantial pain.

“Serious bodily injury.” Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Regarding “physical menace,” Pennsylvania juries are instructed that to find a “physical menace” requires a showing that the accused “must have done some physical act that was menacing or frightening.

So, with these terms now defined, our two initial questions above can be more sharply focused.

    • Under Section 2701(a)(1), is the act of coughing or spitting on another another an attempt to cause an “impairment of physical condition or substantial pain”?  Is it the intentional, knowing, or reckless cause of an “impairment of physical condition or substantial pain”?
    • And under Section 2701(a)(3) is the act of coughing or spitting on another a “menacing or frightening act,” and is doing so an attempt to place another in imminent fear of (1) a “substantial risk of death”; (2)“serious permanent disfigurement”; or (3) “protracted loss of impairment of the function of any bodily member or organ”?

Okay . . . so we’re left with further questions still.  Fortunately, though, there’s some caselaw to speed us along the way to an answer.

In the case of Commonwealth v. Childs, 1793 EDA 2010 (Pa. Super., Feb. 12, 2013), the Superior Court affirmed the conviction of the defendant in that case reasoning that his act of spitting in the mouth and eyes of a police officer actually caused the officer to suffer a bodily injury.  The Superior Court reasoned to this conclusion this way:

Under the particular facts in this case, we conclude the evidence sufficiently establishes Sergeant Medycki actually suffered bodily injury as a result of Appellant spitting in his mouth and eyes. Sergeant Medycki specifically testified that, as a result of Appellant’s spit going directly into his mouth and eyes, he went to the hospital, where he was prescribed preventive HIV treatment, which caused him to be so ill he missed approximately six weeks of work. The trial court determined Sergeant Medycki suffered an impairment of physical condition and/or substantial pain due to the treatment he required from Appellant’s intentional actions such that Appellant was guilty of simple assault. We agree with the trial court and affirm on this basis. See Commonwealth v. Cordoba, 902 A.2d 1280 (Pa.Super.2006) (holding cases involving HIV and bodily fluids are no different than other cases in that the Commonwealth may prosecute an individual for committing acts that meet the elements of the crime); 18 Pa.C.S.A. § 2701(a) (setting forth elements for simple assault); 18 Pa.C.S.A. § 2301 (defining “bodily injury”).

Under the facts of the Childs case, there certainly was no hesitation to affirm a simple-assault conviction under those circumstances because the officer there became so ill to the point that he missed six weeks of work.  But see Commonwealth v. Jackson, 907 A.2d 540, 549 n.15 (Pa. Super. 2006) (noting spitting “alone is not sufficient to create a substantial risk of bodily injury” in a resisting-arrest scenario, and further noting “[t]he Crimes Code has defined spitting as an assault in one very limited circumstance, that is, when an incarcerated prisoner who knows or has reason to know he is infected with a communicable disease spits on a corrections officer”).

Therefore, there’s at least one example in Pennsylvania for convicting a person of simple assault merely for spitting on another.  But research does not reveal a case involving coughing on another as grounds for a simple-assault conviction.

Bottom line is: spitting on another would likely rise to the level of a simple assault in the time of the coronavirus, but purposefully coughing on another is open for debate.  

As a personal note, I don’t think it would be a stretch to qualify “coughing” on another as a “menacing or frightening” act these days.  But if the government’s going to prosecute someone for simple assault on the “physical menace” basis of subsection (3) of the simple-assault statute, the government will have the hurdle to prove, beyond a reasonable doubt, that this act was an attempt to put another in “fear of imminent serious bodily injury.”