Establishes offenses of throttling and strangulation

Summary of provisions

Section one of the bill amends Penal Law section 70.02 to add a new crime, Strangulation (PL 120.72), to the list of class C violent felony offenses. Separately, bill section two amends subdivision 5 of section 120.05 of the Penal Law to add similar acts to the type of conduct that constitutes Assault in the Second Degree, a class D violent felony offense.

Section three adds the new crime of Throttling (PL 120.71). Throttling occurs when a person, with intent to impede the normal breathing or circulation of the blood of another person, applies pressure to the throat or neck or blocks the nose or throat of a person.

Section four adds the new crime of Strangulation (PL 120.72). Strangu- lation occurs when a person commits the crime of throttling (PL120.71), or Assault in the Second Degree (as defined in PL 120.05 (51(b)), and causes physical injury to the victim. Strangulation is a class C violent felony offense.

Section five provides an affirmative defense applicable only when such conduct occurs for a valid medical or dental purpose.

Section six amends PL section 190.25 to provide that a social worker, rape crisis counselor, psychologist or other professional may be present in the grand jury room to support a young witness who is called to give evidence in a grand jury proceeding concerning the new felony strangula- tion crime.

Section seven amends section 700.05 of the Criminal Procedure Law to authorize law enforcement authorities to use wiretaps and similar eaves- dropping devices when investigating the possible commission of the new felony strangulation crime.

Section eight amends section 1154 of the Domestic Relations Law to add the new felony strangulation crime to the list of crimes that constitute "spousal abuse" for purposes of denying an application for certification as a qualified adoptive parent.

Section nine amends section 955 of the Executive Law to add the new Throttling crime to the list of misdemeanor crimes for which a defend- ant, upon conviction, is required to submit a DNA sample for the State DNA Identification Index.

Section ten adds the new felony strangulation crime to the list of crimes that may be subject to prosecution and enhanced penalties under the state's Organized Crime Control Act (PL Article 460).

Section eleven amends paragraph (j) of subdivision (2) of section 378-a of the Social Services Law to include the new felony strangulation crime to the list of crimes that constitute "spousal abuse," for purposes of denying an application for certification or approval as a foster parent or adoptive parent.

Section twelve adds the new throttling and strangulation crimes to the list of offenses that are subject to the concurrent enforcement juris- diction of the family court, and criminal courts, pursuant to Section 812 of the Family Court Act.

Section thirteen provides that the bill shall take effect ninety days after it shall have become a law.

Existing law

No crime in the Penal Law expressly addresses the inten- tional blocking of a victim's circulation or breathing by throttling the neck or covering the mouth or nose of the victim. Under some circum- stances; New York courts have found this conduct to meet the statutory definition of assault; in other circumstances, the courts have not. See e.g. People v. Cannonoff, 300 A.D.2d 407, 408 (2nd Dept. 2002); People v. Bonney, 69 A.D.3d 1116 (3d Dept. 2010) (attempted murder); compare People v. Lewis, 294 A.D.2d 847 (4th Dept. 2002). In cases where courts determined that such conduct did not meet the definition of assault, perpetrators have been convicted only of lesser crimes, such as attempted assault, menacing and harassment. See, e.g., People v. Lewis, supra.

Justification

Throttling and strangulation are among the most poten- tially lethal forms of abuse. When perpetrators of domestic violence use these acts to silence their victims, it is a form of power -and control that has devastating psychological effects and can cause an irreversible and fatal outcome.

Throttling and strangulation epitomize the power dynamic in most domes- tic violence cases. This is because these acts send a message to the victim that the batterer holds the power to take the victim's life -- with little effort -- in a short period of time, in a manner that may leave little evidence of an altercation.

Eleven pounds or more of pressure applied to a person's neck for just ten seconds can cause unconsciousness. Death can occur in minutes. While these acts are incredibly dangerous -- one study found that stran- gulation represents ten percent of violent deaths in the U.S. each year

(involving six female victims to every male) -- non-homicidal throttling and strangulation may be difficult to prove because, often, these crimes leave no visible bruise or mark. One recent California study, for exam- ple, found that in a majority of misdemeanor cases involving pressure on the neck, police reported no visible sign of injury.

Throttling and strangulation can be extremely painful. The suffering endured by these victims often includes torment caused by the blocking of blood flow and/or near asphyxiation; it is not necessarily limited to "pain" alone.

Effectively prosecuting cases involving throttling and strangulation is challenging under current law. By expressly addressing this conduct in discretely defined crimes, and significantly increasing the applicable penalties, this bill will assure that perpetrators of these reprehensi- ble crimes are successfully prosecuted and punished.

Legislative history

New bill.

Fiscal implications

There are no direct fiscal implications.

Effective date

The bill takes effect on the ninetieth day after it shall have become a law.