A judge refused to dismiss a second-degree assault charge Thursday against a Mountlake Terrace man who allegedly hosed down his son as punishment for wetting his pants, and then left him outside shivering.

Snohomish County Superior Court Judge Ronald Castleberry ruled that a judge or jury could interpret the conduct, if proved, as second-degree assault.

Public defender Kathleen Kyle argued that the judge should dismiss the charge against Kristoffer Wiggers, 33, because the boy was not physically harmed. That argument came after deputy prosecutor Janice Albert upped the charge from third- to second-degree assault.

Albert said that the act against the nearly 3-year-old boy was the equivalent of torture.

In a written decision, Castleberry noted that the June incident happened about 5 p.m. when the outside temperature was 64 degrees, and the garden hose water was likely much colder.

Witnesses heard the boy scream: "Stop, Dad, I’m freezing. I don’t do it again. I’m cold."

Wiggers yelled back, "If you’re going to act like an animal and wet your pants, I’m going to treat you like an animal," court documents say.

There were no bruises, but police estimated the boy had been left alone shivering on the deck for 25 minutes. He was found in a fetal position and was whimpering and crying, court documents say.

"This would be a sufficient basis to constitute either physical pain or injury," Castleberry wrote. "Whether the boy suffered physical harm is a question of fact to be determined at trial."

Likewise, whether Wiggers’ actions are enough to "establish that he tortured the boy is dependent upon the specific facts produced at trial," Castleberry added.