BAIL HEARINGS IN FELONY STRANGULATION CASES – SEVEN MEDICAL-PHYSIOLOGICAL FACTS EVERY JUDGE AND ATTORNEY SHOULD KNOW (18-01)

I write this post out of a sense of urgent concern. I recently observed an absolutely dismal bail hearing in a FELONY strangulation case presided over by a clueless judge and an uninformed prosecutor. (I will not mention the name of the county, judge or prosecutor).

After the defense attorney made an impassioned “no bail” argument that was filled with blatant misstatements of medical fact it became quite obvious that the judge and prosecutor were painfully ignorant regarding the insidious nature of strangulation. Bail was set at an outrageously low dollar amount and the victim and her family were visibly and justifiably upset.  (The victim looked terrified).

The purpose for re-submitting this training update (originally published in 2014) is to hopefully educate the bench and prosecution of critically important facts that must be considered in every felony strangulation bail hearing. I will go so far as to say that any judge or prosecutor not familiar with the medical/physiological facts outlined in this post has no business presiding over or prosecuting any case involving strangulation. The potential risk to victims are simply too great.

Consider this: A study published in the Journal of Emergency Medicine found that women who survive strangulation by their partner are seven times more likely to be the victim of an attempted homicide and eight times more likely to be the victim of homicide. In other words, strangulation is often one of the last abusive acts committed by a violent domestic partner before murder. 

I have been publishing these judicial training updates for more than 10 years all for a simple singular purpose: the hope of keeping our bench and bar as well-educated on relevant issues as possible. When I was still on the bench virtually every judge in the state received these training updates.

To my dismay, I was recently told that judges no longer receive these training updates because someone high up in the judicial branch ordered an email spam filter that blocks the judicial branch from receiving these updates. I was deeply saddened to hear that and sincerely hope it isn’t true. In the meantime, if you know a judge, especially a newer judge, that you believe could benefit from this update (or anyone else for that matter) please feel free to pass it on. Now, on to the really important facts:

QUESTION: When making bail decisions in Felony Strangulation cases, what seven well-established medical-physiological facts should every judge (and attorney) be aware of?   (the facts in #5 will amaze you!)

1. DEFINITION OF STRANGULATION: Strangulation is a form of asphyxia (lack of oxygen) characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck.
2. WIDESPREAD LACK OF UNDERSTANDING:
   1. Many judicial officers and attorneys do not understand the medical and psychological severity of the act of strangulation.
   2. In many cases, the lack of observable physical injuries to the victim cause judges to minimize the seriousness of strangulation.
   3. In order to make sure judges understand the seriousness of strangulation, some prosecutors have asked courts for permission to have an expert in the field of strangulation testify at bail hearings as to the following: see 3-7 below.
3. STRANGULATION IS ONE OF THE MOST LETHAL FORMS OF VIOLENCE USED BY MEN AGAINST THEIR FEMALE INTIMATE PARTNERS:
   1. The act of strangulation symbolizes an abuser’s power and control over the victim. The sensation of suffocating can be terrifying.
   2. Most victims of strangulation are female.
   3. The victim is completely overwhelmed by the abuser; she vigorously struggles for air, and is at the mercy of the abuser for her life.
   4. The victim will likely go through four stages: denial, realization, primal and resignation.
   5. A single traumatic experience of strangulation or the threat of it may instill such intense fear that the victim can get trapped in a pattern of control by the abuser and made vulnerable to further abuse.
4. THE “NECK” IS THE MOST VULNERABLE PART OF THE BODY:
   1. Blood and oxygen all flow from the body to your brain through the NECK.
   2. The NECK is the most unprotected and vulnerable part of the body.
   3. More serious injuries occur from NECK trauma than any other part of the body.
5. MEDICAL FACTS:
   1. Strangulation stops the flow of blood to the brain (carotid artery).
   2. Lack of blood flow to the brain will cause unconsciousness in 10 seconds.
   3. Lack of blood flow to the brain will cause death in 4 minutes.
   4. It takes very little pressure to stop blood flow to the brain (4 psi):
   5. It takes less pressure than opening a can of soda (20 psi);
   6. It takes less pressure than an average handshake (80-100 psi);
   7. It takes less pressure than pulling the trigger of a handgun (6 psi);
   8. It only takes 33 psi to fracture a victim’s larynx (far less than a handshake).
6. LACK OF EXTERNAL EVIDENCE ON THE SKIN:
   1. CAUTION: Lack of visible findings (or minimal injuries) does not exclude a potentially life threatening condition. Strangulation often leaves no marks.
   2. A study by the San Diego City Attorney’s Office of 300 domestic violence cases involving strangulation revealed that up to 50% of victims had no visible injuries.
7. STRANGULATION CAN CAUSE SUBSTANTIAL INJURIES (OFTEN DELAYED) SUCH AS:
   1. Physical injuries (e.g. death, unconsciousness, fractured trachea/larynx, internal bleeding (hemorrhage) and artery damage (intimal tears), dizziness, nausea, sore throat, voice changes, throat and lung injuries, swelling of the neck (edema), breathing and swallowing problems, ringing in the ears (tinnitus), vision change, miscarriage);
   2. Neurological injuries (e.g. facial or eyelid droop (palsies), left or right side weakness (hemiplegia), loss of sensation, loss of memory, paralysis);
   3. Psychological injuries (e.g. PTSD, depression, suicidal ideation, memory problems, nightmares, anxiety, severe stress reaction, amnesia and psychosis);
   4. Delayed fatality (e.g. death can occur days or weeks after the attack due to carotid artery dissection and respiratory complications such as pneumonia, respiratory distress syndrome (ARDS) and the risk of blood clots traveling to the brain (embolization).

MINNESOTA HISTORICAL FACTS OF INTEREST

1. It is estimated that 23% to 68% of women victims of domestic violence have experienced at least one strangulation assault during their lifetimes. Victims of prior attempted strangulation are 8 times more likely of becoming a homicide victim.
2. In response, the Minnesota Coalition for Battered Women (MCBW) with the assistance of WATCH and its member programs, pushed for the creation of a felony statute for domestic strangulation during the 2005 legislative session.
3. In 2005, Minnesota became one of just six states with a specific statute making strangulation of a family or household member a felony-level crime. MS 609.2247.
4. Under Section 609.2247 strangulation means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.
5. Prior to the law’s passage, most domestic strangulation cases were charged as misdemeanors even though strangulation is one of the most dangerous forms of domestic violence.
6. As of 2014, thirty-eight (38) states have passed similar strangulation statutes.
7. As of 2016, Minnesota was the only state to have conducted an evaluation of the felony strangulation law.  Three nationally distributed reports prepared by WATCH in 2007 and 2009, identified the goals, the challenges and the benefits of the law including homicide prevention; interviewed professionals from the criminal justice system, analyzed court files, and made numerous recommendations to enhance the effectiveness of the law.   (Watch 2007, 2009).

STRANGULATION IS OFTEN ONE OF THE LAST ABUSIVE ACTS COMMITTED BY A VIOLENT DOMESTIC PARTNER BEFORE MURDER. 2004 Report, Hennepin County Domestic Fatality Review Team.

NOTE: The above referenced reports can be obtained by contacting “WATCH” 527 S Marquette Ave Suite, 1508,  Minneapolis, MN 55402, 612-341-2747, watch@watchmn.org,

REFERENCES: Gael B. Strack, JD, CEO and Co-Founder of the Family Justice Center Alliance, San Diego, CA, gael@nfjca.org, 888-511-3522; Dr. Michael Weaver, M.D., Medical Director, St. Luke’s Hospital’s Sexual Assault Treatment center, Kansas City, Missouri.

Alan F. Pendleton (Former District Court Judge), afpendleton@gmail.com

February 3, 2018.