By Lisa Gillespie
It takes only four seconds of strangulation for a victim to pass out. And while injuries like a knife wound or a punch to the eye all usually result in some physical evidence of harm, strangling is different.
“You can have internal injuries with no marks on the outside of the neck,” said Bill Smock, a national expert on strangulation and a forensic physician with Louisville Metro Police Department. “Unfortunately there’ve been many felony assaults that have been charged as a misdemeanor based upon inadequate investigation.”
Those injuries can include bone fractures and swelling, but strangulation is often prosecuted as a misdemeanor in Kentucky. Under state law, strangulation can technically be prosecuted as a Class B felony, but because it requires a medical professional to testify, often prosecutors don’t choose that route.
A bill moving through the Kentucky General Assembly would make it easier to prosecute strangulation as a lower-level felony: a Class D. This is a minimum standard that’s already on the books in at least 45 other states.
Lexington prosecutor Lou Anna Red Corn said during testimony in Frankfort that because of this lack of physical evidence after strangulation, there’s more burden on the people involved in evidence gathering. And Red Corn said even these medical professionals often don’t know how serious strangulation is.
“They [victims] tell the police or go to the ER, and we are just beginning to learn how dangerous this is and things often go overlooked,” Red Corn said. “The bottom line is that it’s currently too difficult to prosecute these cases under Kentucky law as the law currently exists.”
This lack of evidence for prosecutors to use in court, often makes it difficult to charge perpetrators with a higher-level felony.
By changing the penalty for strangulation to a Class D felony, it would allow other types of evidence. For example, a witness to the crime, or a victim’s testimony.
The majority of strangulation victims are women experiencing domestic violence, according to studies. According to a 2008 study from Johns Hopkins, women who are strangled are seven times more likely to be killed by an intimate partner later.
“Principally strangulation is a gender crime, because women are 99 percent of the victims,” Smock said. “[These men] are the same men that go on to kill police officers or kill that victim that they’ve strangled.”
There is some pushback against the bill from public defenders and criminal defense lawyers. Public Defender Damon Preston, head of the Kentucky Department of Public Advocacy, told legislators that the current law is adequate. He said if strangulation is automatically a felony, prosecutors could easily tack it onto other crimes to make prison sentences longer.
He said the bill could also open the door for other injuries to be reclassified as felonies.
“I’ll bet all $12 in my wallet that 320 days from now when we come back, there will be a bill that points to this one, and says, if that’s a felony, surely this is a felony,” Preston said. “If I’ve got a black eye, or if I’ve got some type of bruise, that’s unquestionably a misdemeanor today. But someone comes and sits at this table and says it’s worth more than that.”
Turning To Technology
Back at LMPD headquarters, Bill Smock is working on technology that, even if the measure doesn’t pass, could eventually make it easier to charge strangulation as a felony. He’s experimenting with a thermal camera that could help detect internal damage, even when there’s no visible sign of it.
Smock is working on conducting a study this summer that would look at strangulation of the arm to see if the outline of the hand shows up 24 hours later. That sort of evidence could be used to prove serious physical harm and aide prosecutors.
It’s something Smock is passionate about — he said a Class D felony is even too low for the crime of strangulation, considering it’s one of the quickest ways to kill a person and so many women are later at greater risk of being killed.
A House amendment introduced on March 6 would also create a way for strangulation to be considered a Class C felony. Senate Bill 70 won approval last month and is up for consideration by the full House.
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Posted on March 11, 2019 at 10:26 am