Position Statement – 2010
A.10237 / S.71111 and A.10161A / S.6987A
Support with Recommendation
WBASNY supports legislation to make strangulation a new and distinct crime. We agree that there is a need for this legislation due to the fact that without any signs of physical injury, it can be difficult to prosecute incidences of choking that often occur during domestic violence incidents. Due to the dangerous and extremely frightening nature of strangulations, it is important that prosecutors be able to prosecute this specific crime.
WBASNY has reviewed the current bills that have been introduced (A.10237 / S.7111 and A.10161 / S.6987) in great detail and our comments below reflect the key aspects that should be considered when creating the crime of strangulation. The committees involved include prosecutors, defense attorneys, domestic violence advocates, children’s rights attorneys and matrimonial attorneys. Many of our members have a great deal of expertise in the area of domestic violence.
We have several serious concerns about the details of the current proposed bills, and we strongly recommend the following:
1. WBASNY members would prefer to see the name of the crime changed from “Throttling” to something more common and less inflammatory. Since charges are read to the jury prior to the introduction of evidence, it is important that the title of the charge reflect the crime. We believe most jurors would think of a very serious beating if the term throttling is used, which may not always be the case. We suggest the term “Criminal Choking” or something similar.
2. Our attorneys strongly believe that the crime set out in the misdemeanor statute contains the wrong intent. The current bills describe intent to cut off the breathing or circulation of the blood of another person. We believe this intent will incorporate acts that should not be prosecuted. One example could be the simple act of placing a hand on a child’s mouth to quiet that child. Such an act could arguably fall within the scope of the bill, as written, because that act could arguably be construed as intending to cut off the breathing, albeit for the purpose of quieting the person down. This is not the type of behavior this statute ought to be criminalizing.
We suggest that the legislature use language from the harassment statue to describe the intent that should go along with misdemeanor charge. More specifically, we recommend the following language:
A person is guilty of Criminal Choking when, with intent to cause intimidation, annoyance, alarm, physical injury or fear for the physical safety 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.
3. We unanimously believed that the felony crime of strangulation should be divided into two felonies—Strangulation in the First Degree and Strangulation in the Second Degree. We recommend that these statues dovetail the analogous Assault statutes, as follows:
a. Strangulation 2 would be the same acts and intent as the misdemeanor with resultant physical injury as defined in the Penal Law. This should be a class D violent felony to correspond with Assault 2.
b. Strangulation 1 would also be the same acts and intent as the misdemeanor charge with the result of either serious physical injury as defined in the Penal Law OR loss of consciousness for any period of time. This should be a class B violent felony to correspond with Assault 1.
4. Our Children’s Rights committee requests that this statute not be applicable to juveniles or adolescents, who might get caught up in these charges based on horseplay or normal adolescent fighting.
5. The current bill creates an affirmative defense if the defendant is acting for medical or dental purposes. We would like to make clear that to the extent there are exceptions within the eventual bill, they should be classified as a “defense” and not “affirmative defense.” An affirmative defense puts the burden on the defendant to prove that there was a legitimate reason for doing the acts. In a situation where the defendant is a parent, sexual partner or doctor, it is clear that the burden of proof ought to be on the prosecutor so that these arrests do not occur in the first instance.
6. WBASNY is concerned about specific situations that may technically fall within this statute but should not be criminalized. Some examples include someone who holds the mouth or nose of an individual for medical purposes, parents who may hold their children by the scruff of the neck for valid disciplinary purposes, people who are engaging in horseplay, and consensual sexual practices. It is important to be careful to distinguish a clearly nefarious intent and to assure that legitimate acts are not inadvertently criminalized.
We do not believe that there should be a wiretapping aspect to this charge.