The Washington Post has an editorial this past weekend that is half right. It is right in identifying the research that discloses that in domestic violence situations, when the man attempts to strangle his partner and fails, that is often an indication that there is a fatal encounter in the future. It is wrong about the policy implications for this finding.
The editorial builds on NIH-sponsored research at Johns Hopkins — published here — that “prior non-fatal strangulation was associated with greater than six-fold odds … of becoming an attempted homicide, and over seven-fold odds … of becoming a completed homicide.” The editorial is addressing an apparent legislative gridlock situation in the Maryland legislature that resulted in the tabling of a bill that would have increased the punishment ranges for attempted strangulation from a second-degree assault, punishable by up to 10 years.
That sounds reasonable in theory; in practice it doesn’t work. The reality is that men charged with trying to strangle their girlfriends and wives almost never get the maximum punishment and often get no prison time at all.
The law’s toothlessness stems from language requiring prosecutors to show that the assault caused permanent disability or disfigurement. Even if a man tries to kill a woman, it may leave no lasting physical marks. Too often, that allows defendants to bargain for little or no time behind bars.
So the authors of this new bill would have made attempted strangulation into a first-degree assault, punishable by up to 25 years, and they would redefine attempted strangulation. Instead of requiring proof of an intent to disfigure or disable, the new proposal would allow prosecutors to charge first-degree assault if alleged perpetrators intended to “impede the normal breathing or circulation of blood” — which is pretty much the definition of strangulation. (A caveat — I am not a Maryland lawyer, and I do not know the subtleties of Maryland law on this point. I’m just reacting to what the Post said.)
Here’s the first problem with the Post‘s analysis — if a man who tries to strangle his girlfriend isn’t getting the maximum when the maximum is 10 years, why do we think judges and prosecutors will go for the maximum when it is 25 years?
But the real problem with this bill, and the editorial, is that it fundamentally misunderstands how the legal system needs to respond to domestic violence.
Experience shows that stiffer punishments for domestic abuse will, in most cases, DIScourage reporting. Here’s the situation we see most often. Husband assaults wife. The neighbors call the police; the police officer comes and asks the wife what happened. Wife says, “He hit me.” Husband is arrested and hauled off to jail. He sobers up, she calms down, and when the prosecutor calls the wife to ask about what happened, the wife says, “I don’t want to press charges. I just wanted him out of the house; if he goes to jail he loses his job and our whole family suffers.” The prosecutor tells the wife that she can’t just “drop the charges”; it’s up to the prosecutor now. So the wife testifies at trial, “I hit him first, then he hit me in self-defense.” Our experience in Virginia — and certainly our experience in our practice — has been that if the husband doesn’t actually get convicted, but instead goes into a program like a Batterer’s Intervention Program, the family ends up in counseling, and better results are obtained for all. When there is a second offense, and he is not eligible for BIP the second time, the wife seems much more willing to drop the charges.
Extrapolate to this strangulation bill. If the consequences are more serious, I predict a rise in the number of times that the wife changes her story when things actually get to court. Now she testifies, “Oh, he didn’t actually choke me. His hands were up around my neck, but they never restricted my breathing.” And the prosecution has the same problem, and perhaps has it worse, when the stakes are higher.
Attempted strangulation occurs when a couple is face-to-face in an argument. It doesn’t usually happen with premeditation. The couple is face to face, arguing furiously. Something is said that pushes his last button, and he puts his hands around her neck and tries to choke her. It is an intensely personal crime, but it is also not a crime that is readily deterred, because it is not usually thought out. That suggests that the problem is NOT that the husband is thinking, “I’ll strangle her rather than striking her because it’s only a second-degree assault.” The problem is that the husband is not thinking, period.
The Post editorial refers to attempted strangulation as “the critical gateway” to murder. And the evidence certainly shows that when a relationship has moved to the point where the husband even once puts his hands on his wife’s neck, the relationship has taken a serious turn for the worse. We on the outside of the relationship can say, “Well, that relationship is over. She needs to recognize it and move on. Lock him up for 10 years, she’ll find another partner, and everyone will be better off.” The problem is that what she is thinking is entirely different — “Our relationship is in trouble, but I love him. I don’t want to lose the father of my children. He didn’t mean it. I must have provoked him to get him that angry. If he gets locked up, I lose this apartment.”
I confess that I get suspicious about any argument that says that one crime is a “gateway” crime for another. For generations we learned that marijuana possession was a “gateway” crime leading to consumption of much more dangerous drugs. For years we put marijuana dealers in jail for long terms (I remember one man who got 40 years for selling a few ounces in Danville back in the 1970’s) because it was necessary to keep people from moving on to heroin and cocaine. So to call something a “gateway” crime is not immediately persuasive to me.
Nor is it a good idea to punish an offender based on what he hasn’t done. To punish him more severely because many men who have done the same thing have then later committed a more serious crime. I have a philosophical problem with this sort of actuarial justice, and the correlation is by no means perfect.
Finally, we are told in the editorial that one of the problems with attempted strangulation offenses is that there is often no corroboration for the wife’s story that he was trying to strangle her. It is a fundamental mistake to increase punishments on a crime that we already admit we cannot reliably detect.
The criminal justice system should respond to this compelling research in two main ways:
- Making sure that woman who are in abusive relationships understand that if he tries — even briefly — to strangle her, she needs to either get out of the relationship or get him into court; and
- Making sure that judges, prosecutors and social workers understand that when they screen domestic violence cases, they put big red flags next to cases in which she has alleged strangulation. Those cases need more intensive therapy, or more intensive evaluations, reflecting the serious turn that things have taken.
We get involved in domestic violence cases in a lot of different ways — as counsel for the defendant, as domestic relations lawyers for the victims of crime, and as guardians ad litem for the children in a home where domestic violence is occurring. We have seen that while there are some cases that are sufficiently stark, and the emotional responses to the state of the relationship are sufficiently clear, to make more vigorous prosecution the best course, we have seen many more cases where the “win-win” solution does not involve more jail time.
The Post editorial, and the bill that it refers to, are only half right.
