This is not an homage to strangulation. It is not okay. It is very wrong, as is punching, kicking, or any other harm done in the course of domestic violence. It is a crime, and should be treated as a crime, and it reflects a deeply troubled person. I do not take it lightly.
But that said, it should neither be exempt from the rationale of aggravating factors in the determination of the severity of a crime, nor the next crime to manufacture its own mythology of “expert proof” to facilitate convictions.
The New York Times reports that a 2010 law making strangulation a class “D” felony, where it would otherwise be a misdemeanor assault isn’t panning out as well as prosecutors and advocates against domestic violence hoped:
New York’s law, like dozens of choking statutes across the nation, is popular with law enforcement officials. In 2011 in New York City, 1,458 domestic violence assaults that would have been considered misdemeanors under the old law — more than 9 percent of them — were charged as felony strangulation.
But second-degree strangulation — choking to the point of injury, impairment, stupor or unconsciousness — can leave ambiguous marks or no marks at all, making it tricky to prove. “If you don’t know how to follow the bread crumbs it’s very easy to miss,” said Gael Strack, chief executive of the National Strangulation Training Institute, an anti-domestic-violence group based in San Diego. Of the thousands of defendants charged in New York City, fewer than 20 have gone to trial, state officials said. Experts say that thousands of police and medical professionals around the country have not been trained on how to execute the new statutes.
The idea for the law is grounded in the argument that choking, because it doesn’t involve a weapon (and no, the use of hands is not a weapon, at least for now), is a gateway crime to murder.
Choking, experts say, is one of the most pervasive forms of domestic violence, with its overtones of power and control, and one of the best predictors of more serious violence. “A woman who has been choked is seven times more likely to be the victim of a domestic violence homicide later,” Ms. Strack said.
The problem, for the purpose of charging and prosecuting, is that if choking doesn’t result in serious injury, it’s fails to fulfill the elements of a felony, absent a law that specifically makes it a felony. Is it true that a woman choked is seven times more likely to be murdered? It’s hard to say, as the article offers nothing but the bald assertion, and statistical claims in domestic abuse, like sexual assault, are notoriously unreliable. They play well to audiences, though.
This gives rise to two very deep concerns. First, that an industry will pop up to teach police and “experts” how to follow the bread crumbs and see evidence where no one else can find it. We’ve seen the same with bite marks, dog sniffs, arson patterns. Forensic science that was once believed conclusive, such as fingerprints and shaken baby syndrome, are now being recognized as scientifically questionable. So why not create yet another “science” dedicated to proving guilt where mere mortals can find no evidence?
The second concern is that laws targeting strangulation depart from the scheme of aggravating factors that provide a consistent and rational structure for the severity of crimes and, therefore, punishment. There are three paths by which laws increase the severity of a crime, the first being the use of weapons in the course of the commission of a crime, the second being the mens rea and the third being the extent harm done. The concept behind them is to both provide a disincentive to exacerbate a wrong and to tailor, as narrowly as possible, the crime so that conduct that is less harmful or morally culpable won’t be swept in unintentionally.
In the case of choking, this is particularly problematic, both in terms of proof and severity. The argument is that evidence of choking, primarily bruising about the neck (the article talks about “petechiae,” broken blood vessels, as “suggestive” of choking, there being no observation of bruising), will exist if it occurs for real. By that, I mean it’s not merely touching the neck, or some hold that falls short of choking, but an actual attempt at strangulation. In the absence of any physical evidence that it happened, choking is no different than any other claim. While advocates against domestic violence don’t like hearing this, the fact is that false claims happen. This is why evidence is needed.
The other question is whether it should rise to the level of a felony when there is no consequential injury. Certainly, no one is arguing the pounding a person’s head against a bath tub is a good thing, and yet if it causes no injury, it’s a misdemeanor. What makes choking different? The answer apparently goes back to the allegation that it is “one of the best predictors of more serious violence.” which would support both a deterrent purpose as well as an anticipatory retribution purpose. Whether it’s true that it’s a “best predictor” and whether it sweeps others who would never again engage in violence into its clutches, is a problem.
There is no advocacy group for Guys Who Choke Women to challenge these claims, thankfully. But that means that claims go unquestioned, and laws are enacted without consideration of how they fit into the scheme of criminal law or their unintended consequences. This is particularly true when the crime relates to an interest group, such as gender related crimes, that is so concerned with its focus that its willing to ignore or deny the factors militating against its position. They are willing to sacrifice the innocent to convict the guilty. They accept the conviction of a person who culpability falls short of its mark to get the guy they want.
Cherry picking crimes to be elevated in severity and punishment because of trends and political concerns, despite the inconsistency with the scheme of crime, is a slippery slope. The case can be made that all acts of violence, whether against women or against anyone, are bad, but that’s why they’re crimes to begin with. There are people who would favor life in prison for anyone who engages in violence, unconcerned with the details that form the basis for a rational scheme of criminal law.
Worse still would be the creation of another dubious forensic science designed for the purpose of facilitating convictions because they just aren’t convicting enough people. We all love babies, and yet look at the damage shaken baby syndrome has done. Eventually, there will be advocates for the wrongly convicted who will stand up against bad laws and junk science, but that comes only after the harm is done.
Who would be stupid enough to question and challenge something so awful and despised as choking women beforehand? Yet that’s the only way to prevent the tragedies that come later. As awful as choking another person may be, wrongfully convicting someone of a felony for it isn’t the answer.
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The case they reported on showed the odd dichotomy for strangulation: the claim was that the assailant bashed her head into a bathtub and then strangled her. Both of these appear to me to be at minimum an attempt to cause serious bodily injury to another, and sentencing should be similar on both, depending on the mens rea the jury finds.
In terms of forensic evidence issues, in contrast with your example of “shaken baby syndrome,” which seeks to prove a crime with no witnesses, in a strangulation prosecution there will presumably be a complaining witness who will testify that the strangulation occurred. The medical science is thus introduced by the prosecutor to buttress their testimony, but it seems it may have the opposite effect — jurors seem to be demanding forensic evidence in addition to testimony to prove the crime.
Notice how both the author and another juror fret endlessly over whether there was sufficient forensic proof of the strangulation, ignoring the fact that the strangulation was already “proven” — at least as a matter of there being sufficient evidence upon which a guilty verdict could be based — by the complaining witness’ testimony. It seems the addition of a separate crime, and the introduction of expert testimony, is creating a so-called “CSI Effect” where there was none before.
You’ll note that the post doesn’t discuss the particular case on which the writer sat as a juror. Getting caught up in the facts of one case does little to determine the virtue of a law or its proof. Other cases have other facts. The law has to work for all of them, not just one.
You’re analysis is somewhat off. The evidence that the alleged victim has no bruising contradicts the testimony that she was choked. It remains the expected physical evidence, and its absence is evidence that it didn’t happen and was used to refute the victim’s claim. This is what gives rise to the proof problem for the prosecution, and forms the foundation of the defense. Because of this, the prosecution needs to overcome the absence of normal, anticipated bruising, and thus requires additional evidence. For this, they seek to develop “shaken baby syndrome” type forensics. [Note: This has absolutely nothing to do with whether there is a witness or not; that’s a different issue and utterly irrelevant to the validity of the forensic evidence.]
While the victim’s testimony is “proof” in the evidentiary sense, it may not be sufficient proof in light of the absence of the expected physical evidence. So when you say the writer and juror “ignored the fact that the strangulation was already ‘proven’,” I think you’re interpreting a lay explanation in an overly legalistic manner. They’re saying the testimony, combined with the lack of physical evidence, was insufficient. Bear in mind that the burden in a criminal case is proof beyond a reasonable doubt, not preponderance.. While there are cases where the CSI Effect no doubt happens, this wasn’t one of them.
Agreed on the particular facts, but I think here they’re additionally instructive.
I suppose my word “ignore” should have been prefaced by a caveat; it’s quite possible they viewed the absence of forensic evidence as casting doubt on the complaining witness’ testimony. That is certainly one way to read it (perhaps even a more likely way), but that view would, I think, further support my point that the law and the proffered proof leaves jurors are expecting too much.
Strangulation often does not leave any discernable physical evidence at all (see link below, which I hope you’ll post despite rules), and if the prosecution’s thin medical evidence created the impression that the absence of medical evidence for strangulation was evidence of the absence of strangulation, then that would be a problem more for victims than defendants.
Note, I’m not saying this law cuts worse against complaining victims than defendants, just that such is a potential complication, one that may have happened here. All in all, another reason for caution when carving out a special crime where a general law already applies.
Support for assertion above about strangulation often not leaving marks: http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf
I left your link in (despite rules) because it reflects the problem. Notice who published it? Notice the sources? Not exactly neutrals, and yet there is, cited for authority. That’s how myths happen. More importantly, the absence of evidence isn’t a strong argument that something occurred. That’s the nature of evidence.
Here’s the way the argument would likely go:
Prosecution elicits alleged victim’s testimony: D choked me.
[This is sufficient evidence to surmount a legal insufficiency claim.]
Defense elicits cop’s testimony: I didn’t seen any bruises on her neck.
[The defense argument is clear, it either didn’t happen or was so inconsequential as be unworthy of conviction.]
Prosecution elicits medical testimony: Victims of stangulation do not always show bruising.
[While the blunts the defense’s argument, it doesn’t bolster the fact that it happened. At best, it’s equivocal.]
Prosecution elicits additional medical testimony from an expert whose career is dedicated to the cause: There were signs of petechiae on her neck, which are suggesting of strangulation.
[Bolsters the fact that it happened.]
Defense elicits medical testimony from an ER doc: While petechiae suggests stangulation, it would first be apparent in the eyes. There was no such evidence.
[Undermines prosecution expert.]
Was it legally sufficient if the jury had convicted? Yes. Would a conviction have been against the weight of the evidence? Probably. Was the jury’s take that it was likely he strangled her, but the prosecution didn’t meet its burden of proof, a sound verdict. Yes. Just basic give and take of evidence in light of the facts.
When they upgraded Strangulation, they also created the new Misdemeanor of Criminal obstruction of breathing or blood circulation.
Since that change I have not seen any defendant charged with Strangulation but quite few with Criminal Obstruction.
I haven’t had a case involving either, but then, these aren’t really in my wheelhouse so it’s not surprising. It’s another “interesting” crime as injury isn’t an element at all.
That form of questioning is my point: what started as a credibility issue turned into a medical evidence issue, and the prosecution came up wanting on that front. Seems to me they would have been better off sticking with credibility alone (maybe they would have lost that, too), but the separate crime and the big growth in “science,” some valid and some not, has pushed that aside.
The absence of physical evidence of choking, aside from the medical explanations, would have doomed the prosecution on credibility based on the alleged victim’s testimony. What I think you’re missing is that in criminal cases, most of the time there is no defense case, and the defense is based on arguing the failings of the prosecution’s evidence. This is why I noted the different burden. While testimony that she was choked may meet legal sufficiency, it had little chance of persuasion beyond a reasonable doubt in the absence of any physical evidence to support the testimony.