By Margot Brooks • March 05, 2016•Ms. JD, Writers in Residence, Issues, Other Issues
As violent actions constituting assault go, strangulation is one of the most serious offenses. On its face, this is a pretty obvious statement, but when taken in the context of intimate partner violence, there is more to strangulation than is understood by the layman’s common sense. Strangulation and intimate partner violence hold a particular correlation where each is material to the character of the other. Domestic violence is a predominant narrative background in which strangulation incidents situate: in the United States, around ten percent of violent deaths each year are due to strangulation, and roughly ninety percent of those deaths are linked to domestic violence.[i] In turn, strangulation is a hallmark element of relationship violence – it is estimated that fifty to sixty percent of domestic violence victims are strangled at some point in their relationship[ii], and in many of these cases the strangling is not an isolated incident but a repeated method of abuse.
Strangulation occupies a state of dual connotation in relation to domestic violence, endowing it with a significance that warrants attention. Its first role is as a conduct element of abuse, presented in the simple infinitive: plainly, it is the act of applying pressure to the throat or neck of a victim, impeding breathing or circulation.[iii] In this form, it is included in the concrete action bedrock from which abusive relationships are constructed. Abuse can take an infinite variety of shapes, and there can never be a definitive and categorical determination of one method of abuse as more serious or severe than another. With that acknowledged, however, there is merit to the designation of strangulation as an especially troubling behavior. The consequences to the victim of being strangled range from debilitating to deadly. A plethora of physical injuries can result, as can neurological damage, which is often severe and permanent. Not to be excluded are the psychological effects – frequently cited are anxiety, PTSD, and persistent nightmares, the last of which is seen with increased prevalence in those who have suffered multiple strangulations.[iv] Strangling is associated with the wearing down of a victim’s self-esteem and sense of agency as any feeling of capacity is displaced by fear. Symbolically, strangulation can be a profound expression of the extent of an abuser’s control over his victim – he literally holds her life in his hands, and can end it at his will. Anecdotal accounts of victims often relay strangling incidents as bearing a crushing reinforcement of the abuser’s power and substantiating the perceived impossibility of escape.[v]
The second facet of strangulation’s correspondence with intimate partner violence is its role as a prognostic element. Incidents of strangulation typically transpire in the later stages of abusive relationships, and these episodes are now recognized as a telltale symptom of escalation.[vi] Research has shown non-fatal strangling to be an especially accurate predictive factor for the occurrence of fatal domestic violence. One 2008 study revealed that suffering an incident of non-fatal strangulation increased a victim’s likelihood of later being killed by her abuser sevenfold.[vii] Given the accuracy of strangulation as a predictive element in the intensification of relationship violence and the graveness of the outcomes it foresees, it is critical that legislators and law enforcement extend it the consideration it is due. The utility of accurate indicative factors is especially pronounced in the context of intimate partner violence, where risk assessment is critical in efforts to increase safety.
Despite its undeniable gravity as a form of domestic violence, strangulation has historically received underwhelming attention. A chief reason for this is the fact that most injuries resulting from strangulation are internal, and lasting external injury is rare.[viii] One survey of non-fatal domestic violence strangulation cases found that only fifteen percent of the three hundred victims in the study displayed injuries that were sufficiently visible to be photographed for documentation in police reports.[ix] Due to lack of awareness of the physiological presentation of strangulation, this invisibility of physical damage created a tendency among law enforcement to minimize incidents. This same quality has also traditionally made strangulation difficult to prosecute.[x] If a strangulation incident made it to court, it was charged merely as a misdemeanor.
Fortunately, the increase in understanding of the processes of domestic violence that was largely driven by VAWA has in recent years extended to a more enlightened consideration of strangulation. The 2013 VAWA reauthorization included legislative changes that specifically processed strangulation as a component of domestic violence. It established strangulation of an intimate partner as its own articulated offense within the category of felony assault, carrying a statutory maximum imprisonment term of ten years.[xi] Additional changes were instituted with regards to sentencing guidelines. The provisions detailing aggravated assault and stalking or domestic violence were amended to include as an aggravating factor the “strangling, suffocating, or attempting to strangle or suffocate a spouse, intimate partner, or dating partner.”[xii] For aggravated assault, a showing of this factor results in a three-level enhancement;[xiii] for stalking or domestic violence, it brings a two-level enhancement, or a four-level enhancement if found in combination with another aggravator.[xiv]
Parallel developments are taking place in state law reforms. At present, thirty-eight states have a felony classification for strangulation,[xv] which presents a considerable attitude adjustment of higher concern for the offense; this is, of course, the correlation we would hope to see as the severity of its dangerousness is more widely understood. In addition to expanding criminal offenses and sentencing factors involving strangulation, reforms have produced revised definitions of the act of strangling itself. One issue that contributed to the difficulty of prosecuting strangulation offenses in the past was that it was not well accommodated by the statutory structures of most states, largely in part due to physical injury standards within existing law.
New York provides one example: although ‘strangulation-type conduct’ was criminalized, prior to 2010 the state did not designate strangulation as a specific crime.[xvi] Efforts to address it in this way require finding an appropriate location within the statutes; for this, assault is the most intuitive charge, but the New York assault law has a physical injury threshold requiring “impairment of physical condition or substantial pain,” or, for felony assault, “serious physical injury.”[xvii] Although the information we now have suggests that strangulation would fit, the relative infrequence of visible external injury created obstacles in establishing the level of proof necessary to satisfy the physical injury thresholds. This resulted in strangulation incidents being processed as low level offenses, and often even solely as harassment violations.[xviii] Concern amounted to action, and a new law came into effect in 2010 that addressed strangulation and related behaviors as specific crimes, allowing cases of serious violence to be rightly prosecuted even with a lack of obvious injury. The text of the most recent VAWA-inspired amendment to United States Code Service sentencing guidelines also reflects this progressive consideration of the element of physical injury, reading, “strangulation and suffocation in the domestic violence context is serious conduct that warrants enhanced punishment regardless of whether it results in a provable injury…”[xix]
The shifting status of strangulation as a criminal offense is ongoing, with several states which do not yet classify it as a felony having bills under consideration to do so. The general direction of this trend is positive, though there is a fair amount of variation between states in their statutory content related to strangulation, from divergent definitions of component terms to disparate penalty awards. The current Idaho statute, for example, prescribes up to fifteen years incarceration as punishment for attempted strangulation.[xx] Posing in contrast is Ohio, one of the dozen states where non-fatal strangulation remains a misdemeanor. There, a bill that was introduced in 2015 to establish a felony-level strangulation offense is receiving a lukewarm response, colored in part by concerns about the potential fiscal impact on the law enforcement and court systems;[xxi] it is notated by the Lexis Nexis 2015 Legislative Outlook as having a “low chance to pass next stage.”[xxii] Though Idaho and Ohio are but two pinpoints on a map full of evolving legislation, these discrepancies indicate we have far to go, and a lot to ponder on our way there.
[i] Lawrence J. Szmulowicz, Recommendations on How to Better Protect Strangulation Victims, Legal Intelligencer, Oct. 26, 2015.
[iii] 18 USCS § 113 (2013)
[iv] Christine Hagion Rzepka, Domestic Violence and TBI: The Invisible Injury, SCVBIC, 2015.
[v] Szmulowicz, supra.
[vi] Kelly Weisberg, Domestic Violence: Legal and Social Reality, 144 (Aspen Publishers, 2010).
[vii] Szumolwicz, supra.
[viii] Rachel Louise Snyder, No Visible Bruises: Domestic Violence and Traumatic Brain Injury, The New Yorker, Dec. 30 2015.
[x] Weisberg, supra, at 144.
[xi] Violence Against Women Reauthorization Act of 2013, P.L. 113-4 (2013).
[xii] 18 USCS Appx § 781 (2014).
[xv] Snyder, No Visible Bruises, supra.
[xvi] Amy Schwartz, Important Changes in New York Criminal and Domestic Violence Law, Empire Justice Center, Nov. 19, 2010.
[xix] 18 USCS Appx § 781 (2014).
[xx] Idaho Code § 18-923 (2005).
[xxi] 2015 Legis. Bill Hist. OH H.B. 362 (2015).
[xxii] 2015 Bill Tracking OH H.B. 362 (2015).