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.
