Last year, Kentucky legislators passed a law to make strangulation a separate crime, apart from other kinds of assault.
The law makes strangulation a felony, which denotes its seriousness as a violent crime and as a predictor of future harm in cases of domestic violence.
But the crime can be difficult to investigate and prosecute if officers don’t know how to effectively research the crime, according to a former Texas prosecutor who now trains law enforcement on strangulation cases.
The law defines first-degree strangulation as intentionally impeding a person’s breathing or blood flow by pressing on the throat or neck, or by covering the victim’s mouth or nose. Second-degree strangulation defines strangulation similarly, but says the incident is “wanton” rather than intentional.
Second-degree strangulation is a class D felony, and first-degree strangulation is a class C felony. A class C felony is punishable by between five and 10 years in prison.
By comparison, before the law was passed, an incident of strangulation that didn’t result in death or serious physical injury would have likely resulted in a charge of fourth-degree assault, which is a class A misdemeanor punishable by up to 12 months in jail.
Kelsey McKay, a former Texas prosecutor who does training on strangulation cases, said research shows the crime is often a predictor of future violent behavior against the victim in domestic violence incidents.
“There was research that identified that we in the criminal justice system and medical community were missing asphyxiation cases” if there wasn’t a visible injury, McKay said. “Officers might arrive at the scene and look for bruises on the neck and wouldn’t see (any) and so it would be minimized.”
But the victim, who had blood or air flow cut off, could have sustained a brain injury or other life-threatening injury, McKay said. Also, research found strangulation in domestic violence cases is “predictive of homicide” in the future, McKay said.
“One of the things that is a known indicator that things are getting worse is the use of strangulation,” McKay said.
But Kentucky’s law has a flaw, McKay said, in that it defines strangulation as something that happens “without consent.”
McKay said suggesting that any asphyxiation happened with consent is “victim blaming,” and said. “You can’t actually consent to something that results in death or serious physical injury.”
The state’s law is also too narrow, in that it leaves out other ways a person can be asphyxiated, such as through “positional asphyxiation” where the perpetrator inhibits the victim’s breathing by pressing on the victim’s chest.
“This is something we see where the perpetrator is straddling the victim,” McKay said.
Because there often isn’t visible evidence, such as bruising, law enforcement officers need to know how to investigate asphyxiation cases, and know what questions to ask.
“The question is: What evidence are we going to use, if not physical injury?” McKay said. The victim simply saying they were choked is not enough evidence for a conviction, she said.
“Most states have not invested in training their officers” in how to investigate strangulation cases, McKay said. Officers need training to ask additional questions, such as whether the victim’s throat hurts, if they experienced sight or other problems while being strangled, and if it hurts to swallow, McKay said.
Officers should also ask what the perpetrator said when the victim was being choked, and ask what the victim thought was happening.
“The majority report saying they thought they were going to die,” McKay said.
“We can’t ever get the evidence if we don’t get it as the crime scene” from the investigating officer, McKay said. Training officers how to investigate strangulation cases had results in Texas, McKay said.
Officers need “a plan and a protocol” for investigating strangulation, similar to what officers have now when they investigate whether a motorist is driving under the influence, McKay said.
“As soon as I taught officers what to ask … I started winning these cases,” McKay said.
James Mayse, 270-691-7303, email@example.com, Twitter: @JamesMayse