At Last, Strangulation is a Crime in Kentucky

By Dorislee Gilbert, JD, Executive Director, The Mary Byron Project 

As of June 27, 2019, Kentucky law recognized strangulation as an independent felony crime.  Intentional strangulation–that is, impeding the normal breathing or circulation of blood of another person by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person–is now a Class C felony carrying an indeterminate sentence of 5-10 years’ imprisonment.  Wanton strangulation is a Class D felony carrying an indeterminate sentence of 1-5 years’ imprisonment.  Under Kentucky law, all sentences for felonies are indeterminate sentences, meaning that although upon final sentencing, the judge imposes a specific sentence within the range allowed by law–for example, 7 years for a Class C felony–the sentence is indeterminate because of various sentence credits that can be awarded by the Department of Corrections as well as the availability of parole.  For Class C felony strangulation, an offender would be eligible for parole after having served 20% of the sentence.  For Class D felony strangulation, an offender would usually be eligible for parole after having served 15% of the sentence.      

Strangulation and fear of strangulation have also been added to the definition of domestic violence and abuse, as that term is used related to civil protection orders and determinations of whether criminal defendants who are also victims of domestic violence are entitled to certain probation and parole lenity.

Legislative recognition of the dangers of strangulation is important in the quest to end intimate partner violence in Kentucky.  A person who has previously strangled a partner is 7 times more likely to try to kill that partner in the future and 800% more likely to actually kill their partner in a future attack. A victim of strangulation is greater than seven times more likely to be killed by homicide than a victim who has never been strangled. According to Casey Gwinn, President of the Family Justice Center Alliance, “The most dangerous domestic violence offenders [and rapists] strangle their victims”; and stranglers “are more likely to kill police officers, to kill children, and to later kill their partners.”     

It has commonly and long been known that strangulation poses a risk of immediate death because of the minimal lengths of time and amounts of pressure required to completely foreclose breathing or circulation. For example, 11 pounds of pressure applied to the carotid arteries for 10 seconds can cause loss of consciousness and 33 pounds of pressure can completely close off the trachea. Just 4.4 pounds of pressure can obstruct blood flow from the brain through the jugular veins. In comparison, the average adult male’s handshake is about 80-100 pounds of pressure; it takes about 20 pounds of pressure to open a soda can; and about 6 pounds of pressure is required to pull a handgun trigger. Death by strangulation can occur in 4-5 minutes. 

What is now becoming more well-known to medical professionals, law enforcement, and lay persons alike are the long-term and delayed results of strangulation. Death may be the result of strangulation, but delayed, when strangulation results in carotid artery dissection, aspiration, postobstructive pulmonary edema, acute respiratory distress syndrome, tracheal injury, or hypoxic encephalopathy. Strangulation may cause dysphagia and odynophagia, injury to the epiglottis, hyoid fracture, tracheal fractures, pulmonary issues, and neurological deficits.   

Kentucky follows a trend of 47 states whose laws either make strangulation a standalone crime or describe it specifically as a means of committing another crime, such as domestic battery.  The earliest state to specifically criminalize strangulation was Missouri in 2000.  There the legislature included in the methods of committing domestic assault in the second degree, knowingly causing physical injury “by choking or strangulation.”  All states except Ohio and South Carolina have since made the act of strangulation criminal–either through standalone strangulation statutes like Kentucky’s or through updating the specific methods by which other crimes–such as assault or battery–can be committed in the state.  Available penalties for non-fatal strangulation vary widely among the states and can be as much as 20 years.

Before strangulation was named an independent crime in Kentucky, acts of non-fatal strangulation were often prosecuted as assault or wanton endangerment.  The problems with prosecuting strangulation as assault or wanton endangerment were many.  Assault requires evidence of physical injury or serious physical injury, and strangulation often results in no visible injuries. Wanton endangerment requires proof of risk of death or serious physical injury and disregard for human life. The act of strangulation certainly creates these risk, but juries often had difficulty accepting the idea that an “alleged attack” that left no visible injuries and was described by a “victim” who was often inconsistent and sometimes even uncooperative with the prosecution really posed a risk of death or warranted conviction for a crime as serious as wanton endangerment sounds. Jurors who were on the fence about whether a conviction for wanton endangerment was appropriate could rest easy in believing that the act did not show disregard for human life–if the prosecutor had to bring in an expert witness to describe the risks, how could the offender have known them and disregarded them?  

Now, with the criminal act–strangulation–matching the name of the crime for which conviction is sought–strangulation–and with there being no additional requirement of showing physical injury or risk of death or serious physical injury or disregard for human life, Kentucky prosecutors may face an easier path securing convictions.  Christie Foster, Chief of the Special Victims Unit in the largest Commonwealth’s Attorney’s Office in Kentucky, is excited about the new law and believes that it will result in more consistent successes in prosecution of strangulation cases across the state. In her jurisdiction, in Louisville, where some strangulation cases were already being prosecuted as felonies, the number of felony charges for acts of strangulation has increased significantly with the new law, and she has already seen offenders plead guilty to strangulation offenses. According to Foster, it is important to victim safety and to justice generally that the law finally recognizes the seriousness of strangulation.  

Data since the law shows that strangulation charges are being utilized by law enforcement and prosecutors across the state, but the data represents an alarming amount of violence and near-fatalities. In less than 8 months, from June 27, 2019 to February 17, 2020, 882 charges of strangulation, attempted strangulation, and complicity to strangulation were lodged in Kentucky’s district courts. About 18% of the cases had been dismissed by February 17, 2020; nearly 22% were amended and resolved; and nearly 23% were indicted. Many charges were still pending. The total number of strangulation charges indicted during the period of time (including those coming through district court and those presented directly to a Grand Jury) was 291. As of February 17, 2020, 7.5% of those had been amended and resolved, 6% resulted in conviction as charged, 3% were dismissed, and nearly 2% were resolved through a diversion program. The remaining charges were still pending. 

The hope is that by treating strangulation as the serious offense it is, potential offenders will be deterred, actual offenders will be held accountable and prevented from taking further violent acts against their victims, and lives will be saved. Only time will tell.

 

Domestic Violence Amidst the COVID-19 Pandemic

Domestic Violence amidst the COVID-19 Pandemic

by Dorislee Gilbert

We are in unprecedented times as a nation. For many of us, fear is the predominant emotion. For some, fear was already the predominant emotion in life. The social distancing, quarantining, joblessness, and limited supplies of household products and groceries have struck terror in the hearts of these.

Imagine a life where the easiest moment of the day was when you and your abusive spouse parted ways and headed off to work in the morning. You knew that for 8 hours you would be physically safe and you could focus your energies on something else that would take you far away from the scary, violent place that home had become. But suddenly, your employer requires you to work from home. Your spouse’s employer closes its doors, and home your spouse comes too. The kids’ school has been closed, and they’ve come home with mountains of schoolwork that you’ll have to facilitate. You got to the grocery store just in time to get the last 8 rolls of toilet paper, the last carton of eggs, and one of the few loaves of bread left, but you don’t know when or if you’ll be able to get more.

Your spouse is angry that the world is coming to a halt all over some virus that nobody understands. Your spouse is anxious because paychecks are dependent on working, and your spouse isn’t working. The kids are bored and full of energy, and your spouse is annoyed by them quickly.  Your home is loud, cluttered, and busy. Your spouse just wants peace and quiet, the mess cleaned up, and your undivided attention. But you can’t provide any of those things. Tensions build. You fear for your family’s health, but you fear for their safety even more. How long until your spouse loses it? Your spouse can barely keep it together until the kids are in bed under normal circumstances. Will your spouse’s fury be unleashed in front of the kids this time? Will it be unleashed on the kids this time? Will you survive this “social distancing” designed for your safety?

A 2018 a report from the United Nations declared that home is the most dangerous place for women around the world. And now, we find women around the world being confined to their homes in an effort to curb the spread of COVID-19, the novel coronavirus. Unsurprisingly, during the COVID-19-related quarantine in China, the number of domestic violence cases reported increased significantly. As reported in Axios, the number of reports to one police station were three times higher in February 2020 than in the same period a year ago. A retired police officer and domestic violence advocate in China reported to the HuffPost that 90% of the causes of violence were related to the COVID-19 epidemic.

The additional stressors and forced isolation on families increases the likelihood of violence in already volatile homes. Current circumstances also make it more difficult for victims of abuse to leave the abusive relationship, and not just because everybody is supposed to stay home. The economic uncertainty of these times and the lack of easily accessible household staples means victims who might have been ready to leave their abusers have to rethink their plans. The fear of being infected with coronavirus means victims who might have been prepared to enter a domestic violence shelter are hesitant to do so. All of these circumstances mean that domestic violence shelters may be more limited in the services they are able to provide and the number of people they are able to serve.

Is there anything we can do to help curb domestic violence in the midst of this crisis when so many of our resources and attention are devoted to such other important causes? Maybe. Do you know a victim or a perpetrator who are now forced to be in close quarters in very stressful circumstances? Do you know a family where you sincerely fear that violence might erupt in these unusual times? Can you make a phone call? Can you be a voice of reason, a voice of calm to a near-perpetrator who is close to reacting violently? Can you be an ear for someone to express their frustrations or fears? Can you make daily calls to make sure someone is alive? Can you work out a system about an amount of time with no contact from your friend before you call the police and ask them to check on your friend’s safety? If you can do any of these things, maybe you can help.

The following articles regarding COVID-19 and domestic violence may also be of interest to you.

Allen-Ebrahimian, Bethany, “China’s Domestic Violence Epidemic,” Axios, March 7, 2020

Driscoll, Brogan, “Higher Risk of Domestic Abuse during Coronavirus Self-Isolation,” HuffPost, March 14, 2020.

Jeltsen, Melissa, “Home is Not a Safe Place for Everyone,” HuffPost, March 12, 2020.

Ralph, Elizabeth, “How Coronavirus Hits Women,” Politico, March 13, 2020.

Scharff, Xanthe, “Why the Coronovirus Outbreak Could Hit Women Hardest,” Time, March 12, 2020.

Sherman, Carter, “Domestic Abuse Could Spike as the Coronavirus Traps People Indoors,” Vice, March 14, 2020.

Giving Tuesday at The Mary Byron Project


The leftovers are gone. The frantic Friday shopping is done. The cyber-deals have been ordered. What
next? Giving Tuesday. But why should you give? And why should you give to The Mary Byron Project? I’ll
tell you why I’m giving. I hope you’ll do the same.
In the interest of transparency, let me first tell you that I’m employed by The Mary Byron Project so feel
free to think that my giving is at least partially motivated by self-interest. It is. And maybe, just maybe
you like me too so that’s enough reason for you to give to The Mary Byron Project. But maybe not. In
that case, you should read on for my top 3 other reasons to donate to The Mary Byron Project today.
#1. Because every child deserves to grow up in a safe home. When one parent abuses another in the
home, children are in danger. I remember a little girl telling me that she couldn’t tell about her mother’s
boyfriend’s sexual abuse of her because she was scared he would kill them both since he threatened her
and she’d seen him angry at her mom and breaking things before. No child should be that scared at
home.
#2. Because shopping, working, eating out, etc., should be safe activities. Recent studies report that
about half of all mass shootings are linked to domestic violence. About one-quarter of all workplace
violence is related to intimate partner violence. It is dangerous to ignore intimate partner violence
because it often occurs in private.
#3. Because I am grateful to be alive and want more women to stay that way. On average three women
per day are killed by a current or former intimate partner. While intimate partner violence can be
perpetrated by men or women against men or women, the majority of victims and survivors are women.
They deserve better.
The Mary Byron Project is enhancing justice to end intimate partner violence through appellate
advocacy, education and training, and legislative and policy work. Your donation will help us make the
law a better protector of survivors of intimate partner violence. It will help us make the law hold abusers
more accountable. Hopefully, it will help us bring an end to intimate partner violence, case by case.
Will you join me? Will you give today? Give today at www.marybyronproject.org
Thanks for your generosity! -Dorislee

Domestic Violence is not a Dispute

Written by Dorislee Gilbert, Executive Director, Mary Byron Project

According to dictionary.com, a dispute is “a debate, controversy, or difference of opinion” or “a wrangling argument; quarrel.” A dispute is not a criminal offense. It is not a violent act. It is a common occurrence in a marriage or a board room. Yet, I recently read a news story about a man who was arrested and charged for a “domestic dispute.” Most certainly, he was not arrested and criminally charged for a dispute. Rather, he was arrested and charged for an act of VIOLENCE, most likely the assault, strangulation, or shooting of an intimate partner. And chances are good that this act of violence was part of a larger pattern of abusive behavior.

If someone shot a teller during a bank robbery, would we ever say that the robber was arrested because of a “bank dispute” or a “dispute over a bank withdrawal”? Would we ever say that someone breaking into a home was arrested for a “property dispute”? Of course not. Yet, when violence occurs in a home between people who purportedly love each other, we minimize it by calling it a “dispute.”

Is it because we need to believe that violence doesn’t really occur in homes despite statistics that tell us that 12 million people in the United States are affected by intimate partner violence each year? Is it because we are certain that there must be some backstory, i.e., something she did to outrage him and justify his violence, even though we know that cooling off periods, counseling, separation, and divorce—not violence—are the acceptable answers to marital or relational discord? Is it because we still think that when violence happens inside homes it needs to stay inside homes even though we don’t hesitate to “like” or “follow” every other detail of family life on social media? Is it because we think that we will destroy a family if we allow the violence to be treated as the serious problem that it is even though we know that a family with violence is not a healthy, stable family that should be maintained at status quo? Is it because women are disproportionately affected by domestic violence, and women are seen as less valuable, less believable, and less emotionally stable even though we’ve long trusted them to care for our children, have elected or appointed many of them to preside over our courthouse disputes, and now have more women than men enrolled in medical schools and law schools?

Regardless of the reason, we must stop minimizing domestic and intimate partner violence! Is it really somehow better to violently assault someone you “love” than it is to commit a crime against a stranger? No, it is much worse—more callous and more dangerous. If a person will strangle a person they “love” into unconsciousness, hit them with their fists, or threaten to or actually shoot them in the head, how could anyone be safe from such violent tendencies? When we pretend domestic or intimate partner violence is not serious or we pretend it is less concerning than other types of violence, we give license to violence, and that violence is unlikely to remain restrained within the home. So, do the world a favor, the next time you hear about an act of domestic or intimate partner violence, don’t think of it as a mere “dispute”, even if that’s what the news calls it. Be outraged about the violence! Call for accountability and an end to it!