But that said, it should neither be exempt from the rationale of aggravating factors in the determination of the severity of a crime, nor the next crime to manufacture its own mythology of "expert proof" to facilitate convictions.
The New York Times reports that a 2010 law making strangulation a class "D" felony, where it would otherwise be a misdemeanor assault isn't panning out as well as prosecutors and advocates against domestic violence hoped:
New York’s law, like dozens of choking statutes across the nation, is popular with law enforcement officials. In 2011 in New York City, 1,458 domestic violence assaults that would have been considered misdemeanors under the old law — more than 9 percent of them — were charged as felony strangulation.
But second-degree strangulation — choking to the point of injury, impairment, stupor or unconsciousness — can leave ambiguous marks or no marks at all, making it tricky to prove. “If you don’t know how to follow the bread crumbs it’s very easy to miss,” said Gael Strack, chief executive of the National Strangulation Training Institute, an anti-domestic-violence group based in San Diego. Of the thousands of defendants charged in New York City, fewer than 20 have gone to trial, state officials said. Experts say that thousands of police and medical professionals around the country have not been trained on how to execute the new statutes.
The idea for the law is grounded in the argument that choking, because it doesn't involve a weapon (and no, the use of hands is not a weapon, at least for now), is a gateway crime to murder.
Choking, experts say, is one of the most pervasive forms of domestic violence, with its overtones of power and control, and one of the best predictors of more serious violence. “A woman who has been choked is seven times more likely to be the victim of a domestic violence homicide later,” Ms. Strack said.
The problem, for the purpose of charging and prosecuting, is that if choking doesn't result in serious injury, it's fails to fulfill the elements of a felony, absent a law that specifically makes it a felony. Is it true that a woman choked is seven times more likely to be murdered? It's hard to say, as the article offers nothing but the bald assertion, and statistical claims in domestic abuse, like sexual assault, are notoriously unreliable. They play well to audiences, though.
This gives rise to two very deep concerns. First, that an industry will pop up to teach police and "experts" how to follow the bread crumbs and see evidence where no one else can find it. We've seen the same with bite marks, dog sniffs, arson patterns. Forensic science that was once believed conclusive, such as fingerprints and shaken baby syndrome, are now being recognized as scientifically questionable. So why not create yet another "science" dedicated to proving guilt where mere mortals can find no evidence?
The second concern is that laws targeting strangulation depart from the scheme of aggravating factors that provide a consistent and rational structure for the severity of crimes and, therefore, punishment. There are three paths by which laws increase the severity of a crime, the first being the use of weapons in the course of the commission of a crime, the second being the mens rea and the third being the extent harm done. The concept behind them is to both provide a disincentive to exacerbate a wrong and to tailor, as narrowly as possible, the crime so that conduct that is less harmful or morally culpable won't be swept in unintentionally.
In the case of choking, this is particularly problematic, both in terms of proof and severity. The argument is that evidence of choking, primarily bruising about the neck (the article talks about "petechiae," broken blood vessels, as "suggestive" of choking, there being no observation of bruising), will exist if it occurs for real. By that, I mean it's not merely touching the neck, or some hold that falls short of choking, but an actual attempt at strangulation. In the absence of any physical evidence that it happened, choking is no different than any other claim. While advocates against domestic violence don't like hearing this, the fact is that false claims happen. This is why evidence is needed.
The other question is whether it should rise to the level of a felony when there is no consequential injury. Certainly, no one is arguing the pounding a person's head against a bath tub is a good thing, and yet if it causes no injury, it's a misdemeanor. What makes choking different? The answer apparently goes back to the allegation that it is "one of the best predictors of more serious violence." which would support both a deterrent purpose as well as an anticipatory retribution purpose. Whether it's true that it's a "best predictor" and whether it sweeps others who would never again engage in violence into its clutches, is a problem.
There is no advocacy group for Guys Who Choke Women to challenge these claims, thankfully. But that means that claims go unquestioned, and laws are enacted without consideration of how they fit into the scheme of criminal law or their unintended consequences. This is particularly true when the crime relates to an interest group, such as gender related crimes, that is so concerned with its focus that its willing to ignore or deny the factors militating against its position. They are willing to sacrifice the innocent to convict the guilty. They accept the conviction of a person who culpability falls short of its mark to get the guy they want.
Cherry picking crimes to be elevated in severity and punishment because of trends and political concerns, despite the inconsistency with the scheme of crime, is a slippery slope. The case can be made that all acts of violence, whether against women or against anyone, are bad, but that's why they're crimes to begin with. There are people who would favor life in prison for anyone who engages in violence, unconcerned with the details that form the basis for a rational scheme of criminal law.
Worse still would be the creation of another dubious forensic science designed for the purpose of facilitating convictions because they just aren't convicting enough people. We all love babies, and yet look at the damage shaken baby syndrome has done. Eventually, there will be advocates for the wrongly convicted who will stand up against bad laws and junk science, but that comes only after the harm is done.
Who would be stupid enough to question and challenge something so awful and despised as choking women beforehand? Yet that's the only way to prevent the tragedies that come later. As awful as choking another person may be, wrongfully convicting someone of a felony for it isn't the answer.
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Source: http://blog.simplejustice.us/2013/02/17/beefing-up-a-law-that-choked.aspx?ref=rss
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