Strangulation and Suffocation: New Criminal Statute with Penalties and Procedures Defendants Need to be Aware Of

This is the second in a series of posts exploring the consequences for criminal defendants of an Act Relative to Domestic Violence, which the legislature passed and Governor Deval Patrick signed late last summer.  That law created the new crime of strangulation or suffocation, which carries significantly greater penalties than a simple assault and battery charge.  (A previous blog post here at bostonlawyerblog.com addressed two other crimes created by this legislation:  domestic assault and domestic assault and battery.)

The Act came about in part due to the killing of Jennifer Martel by her boyfriend, Jared Remy, who has since plead guilty to first-degree murder and to the violation of a restraining order.  The bill’s proponents sought the new crime saying that strangulation and suffocation are frequent means of domestic violence abuse (though not in the Remy case), and that tracking such alleged events would better protect victims of domestic violence.  Before the creation of this new crime, prosecutors had the choice of charging a person alleged to have strangled another with either attempted murder (a 20 year felony) or with assault and battery (a misdemeanor).  This new statute provides a charging option that falls between these two extremes – under the new law strangulation or suffocation is a felony, but a defendant can be sentenced either to state prison or to the house of corrections, and either district or superior court can have jurisdiction.  By contrast, only the superior court has jurisdiction over an attempted murder charge, and any sentence must be served in the state prison.

Statutory Language

The new law provides that:

• Whoever strangles or suffocates another person shall be punished up 5 years imprisonment in state prison or up 2 ½ years in the house of corrections, or by a fine of not more than $5,000, or by both such fine and imprisonment.

• Strangulation is defined as “the intentional interference of the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another.”

• Suffocation means “the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another.”

Ch. 265, § 15D(a).  Unlike the other new laws created by the Act, the strangulation crime can be charged regardless of the relationship between the defendant and the victim.

In addition, there are increased penalties–up to 10 years in prison, or 2 ½ years in a house of correction, and a fine of not more than $10,000–for a defendant if serious bodily injury occurred; the victim was pregnant (and the defendant knew or had reason to know that); the defendant was previously convicted of the same or a similar crime; or the defendant knows that the victim has a restraining order or no-contact order against him or her.  M.G.L. ch. 265, § 15D(b).

Batterer’s Program, Waiting Periods, and Reporting Requirements

A person who is convicted of, or takes a continuance without a finding (CWOF) for strangulation or suffocation (aggravated by special circumstances or not) must complete a certified batterer’s intervention program unless the court issues specific written findings showing good cause for relieving the defendant of such a requirement or unless the program itself “determines the defendant is not suitable for intervention.”  § 15D(c).  The presumption that the defendant will complete such a program appears to apply without regard to whether the crime actually took place in the context of domestic violence and regardless of the defendant’s relationship with the victim, though presumably those factors could be raised to the judge.

Defendants charged with strangulation or suffocation are also subject to the 6-hour waiting period for release on bail and maximum 3-hour waiting period prior to arraignment described in our post on domestic assault and battery.  See ch. 276, §§ 42A, 57, 58.  These procedural changes apply, again, without any requirement that the victim be a family member, household member, or romantic or sexual partner of the defendant.

Additionally, the reporting requirements applicable to the domestic assault and domestic assault and battery offenses may apply to this crime: in any case where there is an allegation of threatened or actual physical harm or sexual assault of a family or household member, see ch. 209A § 1, the charge will appear on the defendant’s Court Activity Record Information (CARI) and can be removed only under very limited conditions.  Ch. 276, § 56A.

What this Means for Criminal Defendants Charged with this Crime

We have yet to see exactly how prosecutors will use this new crime when making charging decisions.  For criminal defendants, it is certainly preferable to face a charge of strangulation or suffocation rather than the much more serious crime of attempted murder, and we have to hope that in appropriate situations the availability of the new charge will prevent over-charging. On the other hand, prosecutors may, for instance, charge a defendant with strangulation for mere contact with the neck, or for other conduct that could have (and previously likely would have) been charged as an assault and battery, a misdemeanor carrying no threat of state prison time.  It also seems likely that criminal defendants whose crimes are not actually crimes of domestic violence will be subjected to reporting and probation requirements geared specifically toward the perpetrators of domestic violence.  Ensuring that defendants are not subjected to unwarrantedly harsh penalties going forward will require attentive vigilance from the criminal defense bar.