Maiffn Area

Strangulation and Domestic Violence

Posted on November 19th, 2010

Important Changes in New York Criminal and Domestic Violence Law

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 victim’s 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:

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

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:

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 of  Domestic Incident Reports at these scenes, and victim entitlement to the Victim’s Rights Notice.

The new crimes are defined as follows:

§121.11 CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION:  A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: (a) applies pressure on the throat or neck of such person; or (b) blocks the nose or mouth of such person.

§121.12 STRANGULATION IN THE SECOND DEGREE:  A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor 23, loss of consciousness for any period of time, or any other physical injury or impairment.

§121.13 STRANGULATION IN THE FIRST DEGREE:  A person is guilty of strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes serious physical injury to such other person.

Section 121.11’s criminal obstruction is the root charge for all three crimes with the felony level offenses being utilized in circumstances where the victim suffered stupor, loss of consciousness, impairment and/or physical or serious physical injury as a result of the strangulation.  In order to successfully prosecute these crimes, the intent to cause a specific type of injury does not need to be proved, but rather the intent to impede breathing or circulation. This is a very critical distinction.  To prove physical injury or serious physical injury for the strangulation felonies, practitioners should gather necessary medical evidence and look to existing case law interpreting these respective evidentiary thresholds and strangulation-specific injuries in this context. 24

In addition to the new strangulation crimes, the law also included quite a few additional amendments. While they are not all detailed here 25, some highlights include:

Evidence Collection Strategies 26

While the immediate priority of law enforcement or medical personnel on the scene of a domestic violence incident should be a focus on the victim’s health and safety after a strangulation incident, it is also equally important to document injuries, property damage or destruction that may have occurred.  To build a case, it is helpful for the victim, the attorney, and/or the responding law enforcement agencies to:

Looking Ahead

Some advocates have argued that separating out new designated crimes, such as strangulation, is unnecessary where the conduct in question is already criminalized and limited prosecution may, in part, be the result of inadequate training.  However, because of their particular nature, some crimes appear to be better suited to their own category of offense.  Stalking is one such example.  In 1992, stalking-like conduct became actionable under both the menacing and aggravated harassment laws.  However, it was soon determined that these existing laws inadequately recognized and addressed the specific dynamics and behaviors related to stalking and state law was comprehensively amended with The Clinic Access and Anti-Stalking Act of 1999. 27  Passage of stalking-specific crimes in this state resulted in widespread legal attention to the issue, as well as additional, and, arguably, more useful, charging options.  Strangulation is similar.

Prior to this new law’s passage, many strangulations in New York were often charged as violations or misdemeanors, despite the fact that it is one of the most notoriously dangerous domestic violence offenses.  While designated state statutes addressing strangulation now give law enforcement and attorneys additional legal tools, more responsive laws still cannot replace good training, thorough investigation, and evidence gathering.  Presently, advocates view these new laws optimistically as a positive step in enhancing victim safety, holding domestic abusers accountable, and preventing domestic homicides.  With time, many hope to see the laws used with regularity.  There is also expectation that designated offenses will increase general awareness of strangulation dangers, including the potential lethality of strangulation, among service providers, attorneys, law enforcement, and criminal justice personnel.  How the new laws will be implemented and interpreted by the courts will be watched closely by advocates statewide and periodically reported on in the Legal Services Journal and the Empire Justice website.


1   Such conduct is often misidentified by service providers, attorneys, and law enforcement as “choking.”  However, “choking” is the internal blockage of the windpipe with a foreign object, such as food.  “Strangulation” is the external obstruction of another’s breathing or blood circulation either manually or with the assistance of a ligature or other device.
2   Women were victims of strangulation at a rate of 6:1 versus men.  Gael B. Strack, J.D., George E. McClane, M.D., Dean Hawley, M.D., “A Review of 300 Attempted Strangulation Cases, Part I: Criminal Legal Issues”, The Journal of Emergency Medicine, Vol. 21, No 3, pp. 303-309 (2001).
3   L. Wilbur, M. Highley,  J. Hatfield, Z. Surprenant, E. Taliaferro, & D.J. Smith, “Survey Results of Women Who Have Been Strangled While In An Abusive Relationship”, The Journal of Emergency Medicine, Vol. 21, pp. 297-302 (2001);  D.C. Berrios & D. Grady, “Domestic Violence: Risk Factors and Outcomes”, Western Journal of Medicine, Vol. 155, pp. 133-135.
4   A.10161-a (Lentol); S.6987-a (Schneiderman).  Notably, there were numerous strangulation-related bills introduced in the NY legislature during the 2009-2010 session.
5   Gael B. Strack, J.D. and George E. McClane, M.D., How to Improve Your Investigation and Prosecution of Strangulation Cases (May 1999).
6   Strack at EN 2.
7   Strack & McLane at EN 5.
8   Id.
9   Id.
10  Id.
11  Id.
12  Id.
13  Id.
14  Id.
15  Id.
16  Id.  The authors also noted that while breathing changes may appear initially mild, underlying injuries have the potential to kill the victim where injured structures decompensate up to 36 hours or more following an incident.
17  Strack at EN 2.
18  Penal Law §10.00(9).
19  Penal Law §10.00(10).
20  For example, see People v. Felipe, 66 A.D.3d 919 (2002)(evidence established that in addition to other injuries sustained in the attack, the victim reported strangulation that resulted in loss of consciousness for 20 to 25 minutes, as well as pain in his hands, body, and neck and this was sufficient to prove physical injury); People v. Cannon, 300 A.D.2d 407 (2002)(complainant testified that he was strangled, and as a result, temporarily lost consciousness, was unable to eat any solid foods for two days, and had a pain in his neck and his throat that persisted for approximately 7-8 months and this was sufficient to establish physical injury); People v. Pettine, 50 A.D.3d 1517 (2008) (evidence sufficient to show physical injury where complainant suffered severe back pain for more than 2 weeks, as well as severe pain in her throat and jaw and difficulty swallowing lasting 1 1/2 to 2 weeks); People v. Bruno, 47 A.D.3d 1064 (2008) (evidence that defendant choked the victim to the point where she could not speak or breathe, went numb and suffered from impaired vision, as well as threatened to kill her, supported the conclusion that he intended to cause serious physical injury); People v. Delph, 269 A.D.2d 218 (2000) (evidence that defendant choked complainant for 1-2 minutes, compressing her windpipe from behind and rendering her nearly unable to hear or see, established that she suffered physical injury); but see People v. Lewis, 294 A.D.2d 847 (2002)(evidence insufficient when victim was strangled  leaving red marks, but failed to receive medical treatment or testify to pain).
21  For example, see “Bath Man Accused of Hitting, Binding, Choking Woman”, Elmira Star-Gazette, October 12, 2010 where alleged accuser was charged with harassment in the second degree after allegedly dragging the complainant from a car by her hair, holding her down, binding her hands behind her back with electrical tape, and then strangling her with the strap of her purse.
22  The law also establishes an affirmative defense applicable only when such strangulation-type conduct is purportedly for a valid medical or dental purpose (PL §121.14).
23  Per Merriam-Webster’s online medical dictionary, stupor is characterized by “a condition of greatly dulled or completely suspended sense or sensibility; specifically : a chiefly mental condition marked by absence of spontaneous movement, greatly diminished responsiveness to stimulation, and usually impaired consciousness.”  http://www.merriam-webster.com/medlineplus/stupor24 See FN 20.
25  To see the entire law, see L.2010, ch.405.
26  Modified from the investigation checklist detailed in Strack & McClane in FN 5.
27  L.1999, ch.635, §2