The police report says he choked her—how do I prove it?
The 81st Legislature changed the domestic violence statute to enhance strangulation to a third-degree felony. Here's how to use the powerful new tool against family violence.
Shelly Wilbanks
Assistant Criminal ­District Attorney in Wichita County
Tina (not her real name) came to my office to apply for a protective order against her husband of almost 20 years. A petite woman with stylish, spiky blonde hair and brown eyes, she had a cluster of bruises blooming and coloring both sides of her neck. The bruises were a little like constellations—if you connected them visually, you could almost see the shape of his hands. Her voice was hoarse and her throat and body sore. She let the tears roll down her face while she described to me how she bit, scratched, and kicked out her bedroom window as she fought back against him, eventually losing consciousness. Not surprisingly, her husband contested the PO, but the pictures we took of her injuries that day said it all. The judge granted the protective order, and I had a strong start on building the criminal case.
Unfortunately, while these cases are frighteningly common, the evidence of strangulation I was able to collect for this particular case is rare. We all know that proving regular family violence assault cases is challenging enough because of the relationship between victim and offender, but proving domestic violence strangulation cases falls into an exceptionally difficult class. Police affidavits and reports often cite "choking" or describe strangulation as part of the assault but rarely note any visible injuries or symptoms, leaving us to rely on either victim testimony or pictures of bruises from a non-strangulation injury to prove up the case.
Now that the legislature has elevated the assault of a family member by strangulation to a third-degree felony,1 according it the level of severity it deserves considering the high risk of death associated with strangulation, we as prosecutors should know how to look for and record evidence of such assaults for use in court. The new provision defines the offense as "impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Note that though "choking" is generally used to describe strangulation cases (and, indeed, police reports and victims themselves might use that word), most of these assaults are more accurately defined as strangulation cases because, while true choking happens when something becomes lodged in a person's throat blocking the airflow, strangulation is clinically defined as a lack of oxygen characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck.#2
So, now that we have the new provision, how can we successfully prosecute these cases?
The National District Attorneys Association (NDAA) recently held its 19th Annual National Multidisciplinary Conference on Domestic Violence in San Antonio, and I attended. One session focused on strangulation cases; it was presented by Gael B. Strack, a former prosecutor of more than 15 years out of San Diego, now the Executive Director of the National Family Justice Center Alliance. Ms. Strack has been studying and working to improve prosecution of assault family violence strangulation cases since 1995. She discussed a study of 300 randomly selected cases over five years in which the victims reported being "choked." The study showed what most of us already know: that visible injuries were present in only a minority of cases. Even when they were visible and pictures were taken, often the photos were useless because they did not adequately reflect the injuries. The study also showed that only 3 percent of these victims obtained medical attention and that symptoms of strangulation, such as hoarseness, voice changes, sore throat or neck, memory loss, nausea, loss of consciousness, defecation, uncontrollable shaking, and hyperventilation, were rarely documented.
The good news: There is evidence of strangulation
Though I wished that Ms. Strack's session had not been scheduled right after lunch—it included autopsy photos that graphically illustrated physical effects of strangulation on the brain—the information she provided was well worth any queasiness. These autopsy photos clearly showed that there is physical evidence of strangulation; we just have to know (and train law enforcement) where to look for it.
Here are important things to know about strangulation and how to detect and photograph it: Bruising may not be apparent until a couple of days later, so follow-up photographs are often beneficial.
Bruising may also be visible under the skin, which can be found and photographed using ultraviolet light or infrared photography.
Alternatively, bruising and other injuries may be visible in unexpected places, depending on how the defendant attacked (from the front or back, using one or both hands, with an instrument such as a cord, rope, or hose, for instance); bruising could be present on the victim's shoulders, back, chest, or even behind her ears.
The victim may have scratch marks on the neck or under the chin from trying to remove whatever the defendant was using to cut off the blood or oxygen flow. For this reason, always ask the victim to remove clothing and makeup so bruises and scratches will be visible and can be photographed.
The defendant's arms or hands may have bite marks, bruising, or scratches from the victim's attempts at self-defense. Again, take pictures of this evidence.
The victim may be hoarse; her throat may be sore or swollen; her neck muscles may be pulled, strained, or otherwise damaged; or she may have trouble swallowing. Obtain 911 tapes, which can provide evidence of voice changes that can follow strangulation.
Changes in breathing can also be indicative of neck or throat injuries; even if breathing changes seem minor, they may be due to underlying injuries that can kill the victim hours or days later. If these symptoms are present, it is important for investigators to observe and document them, and it's important to the victim's health and safety for her to submit to a medical evaluation.
Petechiae—tiny red spots due to ruptured capillaries—are a signature injury of strangulation. At times, they may only be found under the eyelids, but they may also be found around the eyes and anywhere on the face and neck, including the victim's scalp. Petechiae can be present in a pattern easily mistaken for a rash. Blood-red eyes, the result of ruptured capillaries in the white part of the eyes, are indicative of a "particularly vigorous struggle between the victim and assailant."3
Our legislature has given us a powerful tool. Now it is up to us to use it in the fight against domestic violence and this particularly lethal form of assault. Prosecuting strangulation assaults presents unique evidentiary challenges, but the evidence is there if we know where to look. Because many of us do not have the opportunity to be on the scene during the investigation, it is important that we work closely with law enforcement to educate them about the new provision and what we need to successfully prosecute strangulation assaults.
Editor's note: Special thanks to Gael Strack for her permission to use her research and presentation as the basis for this article.
1 Tex. Penal Code §22.01(b)(2)(B).
2 Strangulation: a full spectrum of blunt neck trauma. Ann Otol Rhinl Laryingol. 94:6:1, Nov. 1985, 542-46. Strangulation: a review of ligature, manual, and postural neck compression injuries. Annotated Emergency Medicine, 13:3, March 1984, 179-85. K.V. Iserson.
3 NDCAA Presentation on How to Improve Your Investigation and Prosecution of Strangulation Cases. Gael B. Strack, JD. Executive Director, National Family Justice Center Alliance. Prepared with the Assistance of Dr. George McClane, Oct. 1998, updated Jan. 2003 and Sept. 2007.