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:
- Only eleven pounds or more of pressure applied to both a person’s 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
- 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 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:
- Social Services Law §378-a adds the new crimes of Strangulation 2nd and 1st to the list of crimes that constitute a conviction involving “spousal abuse” as it relates to an application for certification or approval as a prospective foster parent or adoptive parent. Similarly, DRL §115-d includes the new crimes of Strangulation 2nd and 1st to the list of crimes that constitute a conviction involving “spousal abuse” as it relates to an application for certification as a qualified adoptive parent.
- PL §485.05 adds the new crimes of Strangulation 2nd and 1st to the list of felony offenses subject to potential prosecution as hate crimes.
- PL §130.91 adds the new crimes of Strangulation 2nd and 1st to the qualifying list of sexually-motivated felony offenses.
- Mental Hygiene Law §10.03 adds the new crimes of Strangulation 2nd and 1st to the list of designated felony offenses as they relate to the possible civil commitment of sex offenders where such conviction was sexually-motivated.
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:
- Take photographs of the victim’s injuries and red marks, no matter how minor. Remember that some physical injuries may become apparent or visible as many as several days after an incident, so swelling, marks and bruises should be repeatedly photographed to show their evolution over time. Note: some of the victim’s injuries (i.e scratches or fingernail marks) may be “self-inflicted” where the victim is struggling to stop the offender’s manual strangulation or to remove ligature from around the throat, neck, mouth or nose.
- If the area where the strangulation took place shows evidence of a struggle (i.e. broken furniture, holes in the walls, tousled blankets), take documentary photographs or video.
- If a ligature was used, try to locate and secure that object or subpoena it from law enforcement. Have the victim testify as to where the object came from if she/he knows. (Was the object already in the room? Did the offender bring the object with him/her?) If the offender brought it to the incident, it may help demonstrate intent.
- If the offender’s hands, arms, knees, or other body parts were used to strangle, have the victim recount the details.
- If the offender had marks or injuries on her/his body (i.e. bite marks on hands, scratches on arms or hands) characterize these injuries as defensive if they are consistent with the victim’s report of struggle. Also, determine if police conducted a statutory primary aggressor analysis at the scene per CPL§140.10(4)(c).
- Have the victim try to recall the words the offender used during the attack indicating an intent to injure, strangle, or kill.
- Have the victim recount what thoughts were going through her/his mind during the incident. (Did the victim fear death? Was there resignation that death or serious injury was imminent?)
- Have the victim try to recall how long she/he perceived the strangulation lasted and how much pressure/strength of the grip the offender used.
- Document and interview witnesses such as neighbors, EMT responders, police, medical providers. Call them at trial.
- Subpoena 911 call records, as these may contain evidence of the victim’s voice horseness or raspiness, hyperventilation, fear, and more during or after the incident.
- Audio-record the victim’s voice to document voice changes.
- Have the victim recount injuries during and after the incident, such as difficulty breathing, swallowing, neck or throat pain, voice changes, or nausea.
- Have the victim recount episodes of numbness, dizziness, faintness, or loss of consciousness during or after the incident.
- Did the victim involuntarily defecate or urinate during the attack? If so, did the victim change clothes before seeking help or medical assistance? Note that victims may be extremely embarrassed about discussing these particular details, but assure the victim they are medically consistent with the crime suffered.
- If the victim received medical attention, have him/her execute a medical release or draft subpoena for EMT records, medical or hospital records for trial. Call these emergency and medical providers as witnesses.
- Have the victim recount any previous strangulation incidents perpetrated by this offender.
- Have the victim describe prior acts of domestic violence, as well as any threats to injure or kill her. This may help to infer the offender’s intent from the surrounding circumstances.
- If the victim was pregnant during the incident, did the fetus experience any trauma or was there a miscarriage following the strangulation?
- Utilize a medical expert to testify about the risk associated with strangulation and the nature of strangulation-related injuries.
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.
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