New York’s Choking Loophole

Dorchen Leidholdt and Jane Manning contribute to New York Times OP-Ed to demand for a statute which will recognize choking as a crime whether or not physical injury is evident. By DORCHEN LEIDHOLDT and JANE MANNING

NEW YORKERS have heard a stream of grave accusations this week that our governor tried to obstruct a domestic assault case against his aide David Johnson. But one element of this story has received less attention than it deserves: After Mr. Johnson’s girlfriend called 911 and reported that he had ripped off her clothes, thrown her against a dresser and choked her, Mr. Johnson was not even arrested.

In this, Mr. Johnson did not receive preferential treatment; the police response would likely have been the same for any defendant, whether he worked for the governor or not. The police wrote up the incident as “harassment in the second degree,” which is not even a misdemeanor but a violation, a trivial charge comparable to disorderly conduct. Incredibly, in New York, choking by compressing someone’s neck is not considered assault unless there is evidence that the victim suffered physical injury.

Advocates for battered women have been working for years to change this. Cutting off someone’s air supply is an agonizing, terrifying and life-threatening form of abuse, and New York needs a statute that makes it a crime to choke someone whether physical injury is evident or not.

Choking is often more dangerous than punching, shoving and other kinds of abuse. If an attacker applies 11 pounds of pressure for just 10 seconds, the victim can be rendered unconscious. With greater pressure, death can occur within minutes. And even after the attacker lets up, a victim can collapse and die hours or even days later because of underlying damage to the neck, or to the brain due to lack of oxygen. Ten percent of violent deaths in the United States are strangulations. And yet choking very often leaves few or no visible signs. In a study of 100 cases of strangulation, the San Diego District Attorney’s office found that in 62 of them, police officers reported no visible injuries, and in 22 others, signs like redness or scratch marks on the neck were too minor to photograph. The study also found that when a victim’s injuries were not visible or consisted of faint redness, the police treated the attacks as trivial.

About half the states in the country have laws specifically addressing choking. But in states that have not enacted such laws, including New York, batterers have an incentive to choose choking and suffocation over other forms of attack. They often escape criminal charges and, perhaps emboldened by their impunity, choke their victims again. A 2008 study of 310 homicides in 11 American cities, published in The Journal of Emergency Medicine, found that 43 percent of women who were murdered by intimate partners had experienced at least one episode of choking before their killing.

This tragic statistic, at least, contains a kernel of hope: If we can change our criminal justice system to take choking seriously, we may be able to head off fatal attacks. On Wednesday, State Senator Eric Schneiderman introduced legislation that would criminalize intentional choking and suffocation in our state. Under this law, choking someone into unconsciousness would be a violent felony. Abusers who terrorize their victims through choking or suffocation without causing unconsciousness or physical injury would face a lower-level felony charge.

New Yorkers looking for some good to come of the latest disgrace in our state capital can find it in Senator Schneiderman’s bill. If enacted, it would ensure that when a victim of choking calls 911, the police can arrest the attacker on serious charges befitting a vicious and dangerous crime.

Dorchen Leidholdt is the director of Sanctuary for Families’ Center for Battered Women’s Legal Services. Jane Manning is the president of the New York City chapter of the National Organization for Women.