Until Senate Bill 70, the act of strangulation was oftentimes charged as fourth-degree assault, a misdemeanor. This new legislation by the 2019 General Assembly made the act of strangulation a felony, a standalone charge that provides a penalty of up to 10 years in prison for those who are convicted.
The bill was sponsored by Senator Alice Forgy Kerr, R-Lexington, and was passed 35-1 in the Senate and 96-0 in the House. It went into effect June 27 this year. Kentucky was one of the last five states to create a strangulation charge.
There are two degrees for the strangulation charge, first and second, but Owensboro Police Department Public Information Officer Andrew Boggess said it’s difficult to imagine many situations where a person would be charged with second-degree assault.
According to the law, a person is guilty of strangulation in the first degree “when the person, without consent, intentionally impedes the normal breathing or circulation of the blood of another person by (a) applying pressure on the throat or neck of the other person; or (b) blocking the nose or mouth of the other person.” It is now considered a Class C felony.
Strangulation in the second degree is different only in that a person must be performing the act of strangulation “wantonly” rather than “intentionally.” Second-degree strangulation is considered a Class D felony.
While it was possible for a person suspected of strangulation to be charged with felony wanton endangerment in the past, it got complicated when it came down to proving the suspect had physically committed the act. To prosecute it as a Class D felony required a medical professional to testify.
A 2008 study from Johns Hopkins University revealed that non-fatal strangulation doesn’t always leave physical signs on its victims, making it difficult to convict a suspect.
“Non-fatal strangulation, as opposed to other severe forms of physical violence such as striking with fists or another object, frequently leaves little in the way of observable injury, yet can result in serious physical and mental health consequences,” the study states.
The same study also revealed that 99 percent of strangulation victims are women, and found non-fatal strangulation to be a “significant” predictor for future lethal violence in abusive relationships. Women who’ve survived strangulation in an act of domestic violence are seven times more likely to be killed later, according to the study.
The new strangulation charge allows for witness and victim testimonies to play a much larger role in charging someone with strangulation.
Boggess said OPD has investigated three separate reports of strangulation since the law went into effect.
“It’s not something we see in every case [of domestic violence], but it is something we see from time to time,” Boggess said. “Before the strangulation charge, we used to charge someone with wanton endangerment, when it was physically evident. Even now, having obvious, visible signs of it will make the case much stronger when it gets to court.”
While Boggess said a jury will always have an easier time convicting someone when there are photos or other physical evidence pointing to strangulation, this new law could provide some flexibility for victims by having witness testimony allowed in the prosecution process.
“Time will ultimately tell whether this actually helps in convicting those suspects or not,” Boggess said. “But it gives us an actual charge we can pursue against somebody. Having a strangulation-type charge may affect the bond that’s set or whether the person is eligible for release.”
The possibility for long-term imprisonment is what truly differentiates the charge. Without physical proof, law enforcement in Kentucky would often give strangulation suspects a fourth-degree assault charge. If convicted, penalties for misdemeanor assault can range from probation to a jail term that, by law, can not exceed 12 months. A fine for misdemeanor assault cannot exceed $500.
“The added strangulation charge is a little easier to understand [than wanton endangerment]. It could give the jury a better understanding of the charge,” Boggess said. “The wording for wanton endangerment is a little vague. I would suspect that most of the times you’re charging strangulation, it’s going to be [in the first degree] because most of the time, it’s going to be an intentional act.”