STRANGULATION AND DOMESTIC VIOLENCE Important Changes in New York Criminal and Domestic Violence Law November 19, 2010 Author: Amy Schwartz Strangulation 1 is one of the most potentially lethal forms of intimate partner abuse. A frequently cited 2001 study found that 10% of violent deaths in the United States were attributable to strangulation and most victims were women. 2 In my previous direct practice experience, my clients commonly reported strangulation events as one of the many violent tactics used regularly by their abusers. Research also bears out what victims and legal practitioners already know – strangulation is, alarmingly, quite common in the domestic violence context. Studies indicate that 23% to 68% of female domestic violence victims experienced at least one strangulation-related incident from their abusive male partner during their lifetime. 3 As a power and control tactic, strangulation is tremendously effective for abusers. Victims may believe they are being killed and, as a result, feel deeply and justifiably terrified both during the incident and for a long time afterwards. As New York’s 2010 strangulation bill sponsors 4 poignantly noted in their justification: Strangulation and these related offenses epitomize the power dynamic in most domestic violence cases. This is because these acts send a message to the victim that the batterer holds the power to take the victims life, with little effort, in a short period of time, and in a manner that may leave little evidence of an altercation. The commonality and lethality associated with this behavior in the intimate partner abuse context requires that domestic violence attorneys understand and appreciate the nature of this crime and how to hold offenders accountable. What Is Strangulation? To better appreciate the dangers associated with strangulation, it is essential to understand some rudimentary human physiology. Strangulation is a type of asphyxiation “characterized by a closure of blood vessels and/or air passages of the neck as a result of external pressure.” 5 Ligature strangulation includes the use of any type of cord-like object, such as an electrical cord or purse strap. Manual strangulation may be done with hands, forearms (i.e. the “sleeper hold”), or even kneeling or standing on the victim’s neck or throat. Research indicates that manual strangulation is the most common form of strangulation used in domestic violence cases. 6 The neck contains bones and cartilage that include the larynx, trachea, and the hyoid bone. 7 Carotid arteries in the sides of the neck are the major vessels in which oxygenated blood travels from the heart and lungs to the brain. 8 Blocking of the carotid artery with external pressure deprives the brain of oxygen. Jugular veins are the major vessels in the neck that transport deoxygenated blood from the brain back to the heart. 9 Blocking of the jugular vein prevents deoxygenated blood from exiting the brain. 10 Closing off the airways prevents a person from breathing. Any one, or a combination, of these events can result in unconsciousness. Notably: Only eleven pounds or more of pressure applied to both a persons carotid arteries for merely ten seconds can cause unconsciousness. 11 To completely close off the trachea, approximately 33 pounds of pressure is required. 12 If strangulation persists, brain death will occur in 4-5 minutes. 13 In addition to the horror of a strangulation attack, these crimes are also extremely physically painful for victims. Researchers report that the general clinical sequence of a victim who is being strangled is: severe pain, followed by unconsciousness, followed by brain death. 14 Evidence of Strangulation Evidence of strangulation may include some of the below physical, neurological and psychological signs and symptoms and these may occur concurrently with or after an attack: 15 Voice changes (hoarseness, raspy voice, or loss of voice) Swallowing changes (difficulty or pain) Breathing changes (difficulty or inability to breathe) 16 Involuntary incontinence Miscarriage Mental status changes (sleep disturbance, amnesia, stress, restlessness or combativeness) Nausea or dizziness Scratches/fingernail marks, scrapes, and abrasions (from offender or defensive injuries) Redness, swelling, abrasions, or bruising on the neck Petechiae (tiny ruptured capillaries that look like red spots) on eyes, face or neck Ligature marks Broken/fractured bones or injured cartilage in the neck Lung damage, fluid in the lungs, or pneumonia Brain injury caused by lack of oxygen Vision or hearing changes Memory loss Attorneys representing victims who have been strangled should direct their clients to obtain medical intervention following an incident to both evaluate the client’s potentially serious medical condition, as well as document injuries. New York’s 2010 Strangulation Law Until this year, New York did not have a specific crime that addressed strangulation, unlike several other states. Strangulation-type conduct was criminalized. However, despite both the commonality and well-known risk of fatality or serious injury associated with strangulation, victims and advocates reported that these events were often not vigorously prosecuted criminally or civilly for a variety of reasons: The bench, bar, law enforcement, and victim service providers often lacked good training about strangulation, the serious nature of injuries, and the grave risk of fatality involved with such brutal conduct. Some strangulation-related injuries may leave little visible physical evidence 17, often leading to non-prosecution or under-prosecution in the courts, under-investigation by law enforcement, lack of medical attention, and minimization by service providers, offenders, and victims. Some victims with injuries may not seek appropriate medical attention after an incident, mistakenly thinking that seemingly innocuous symptoms such as dizziness, swallowing problems, or a raspy voice did not warrant treatment. In some cases, abusers refused to allow their victims to seek prompt, or even any, medical attention. Without comprehensive medical evidence, successful prosecution is more difficult. New York’s statutory structure also created challenges. While assault would generally be considered the fitting charge in strangulation cases, New York’s high “physical injury” threshold for this crime requires proof of “impairment of physical condition or substantial pain.” 18 Felony-level assault requires proof of “serious physical injury” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” 19 While there is some case law that holds strangulation-related injuries met the evidence threshold for physical injury and serious physical injury, case law was inconsistent. 20 As a result, attorneys and law enforcement often relied upon other existing lower level penal law offenses, such as reckless endangerment, menacing, and harassment, to make a case. Anecdotally, victims and advocates frequently complained that these attacks were often charged merely as a harassment violation. 21 Given the violent and dangerous nature of strangulation, the violation of harassment, quite simply, was too low level of a crime to appropriately hold an offender accountable for such conduct. Therefore, unless the victim sustained great physical trauma, obtained medical documentation, or was able to well-articulate injuries suffered, there were many concerns that New York’s justice system was irregularly and insufficiently holding offenders accountable. In response to these long-standing concerns, as well as conflicting case law, Senator Eric Schneiderman (S.6987-a) and Assemblyman Joseph Lentol (A.10161-a) introduced a bill during the 2010 legislative session that makes the acts of obstructing the breathing or blood flow and strangulation specified crimes. The bill was passed by both houses and subsequently signed into law by Governor Paterson on August 13, 2010. The law went into effect on November 11, 2010. The New Strangulation Offenses The new law addresses the unique nature of strangulation and, by adding a new Penal Law (PL) Article 121, creates several misdemeanor and felony level offenses. Called Strangulation and Related Offenses, Article 121 establishes three new crimes: Criminal Obstruction of Breathing or Blood Circulation (PL §121.11), a Class A misdemeanor; Strangulation in the Second Degree (PL §121.12), a Class D violent felony; and Strangulation in the First Degree (PL §121.13), a class C violent felony. 22 The lowest level offense is now a top level misdemeanor with offenders facing up to one (1) year in jail if convicted. The violent felonies carry even larger penalties. These laws were also added as enumerated family offenses under both Family Court Act §812 and Criminal Procedure Law §530.11, therefore subjecting them to concurrent jurisdiction under Article 8, mandatory arrest and primary aggressor analysis under Criminal Procedure Law §140.10(4), law enforcement completion o
Posted on: Tue, 23 Dec 2014 22:58:31 +0000
Trending Topics
Recently Viewed Topics
© 2015