Obtaining Justice for Victims of Strangulation in Domestic Violence: Evidence Based Prosecution and Strangulation-Specific Training
Obtaining Justice for Victims of Strangulation in Domestic Violence Cases
The practice of emergency room medical personnel, law enforcement officials, and prosecutors focusing on visible injuries to prove strangulation in domestic violence cases is not effective. Stranglers are not held accountable and, according to previously mentioned statistics, strangulation remains a killer in domestic violence. The dangerously minimized nature of strangulation requires the criminal justice system to re-think their reliance on visible injuries and develop a new, uniform method of investigation, collection of evidence and prosecution. As previously introduced, this article suggests and argues that the practice of evidence-based prosecution in combination with strangulation-specific training for law enforcement officials, and when feasible, emergency room medical personnel, is an effective approach for successfully prosecuting abusers who strangle their victims and obtaining justice for victims of strangulation in domestic violence.
The practice of evidence-based prosecution, also known as “victimless prosecution,” is not a new occurrence.79 Evidence-based prosecution in domestic violence strangulation cases is the process of using “independent corroborative evidence to prove elements of a crime without relying on the victim’s testimony.”80 In effect, evidence-based protection requires law enforcement officials and prosecutors to treat the offense as a homicide case, where there is no victim.81 There are five types of evidence, both collected at the scene of a domestic violence incident and supplemented through other means, which can be used to effectively prosecute an abuser who strangles his victim. The five types of evidence are: a 911 phone call recording, photographs, physical evidence, medical evaluation forms, and expert testimony.The first, and perhaps the most valuable, piece of evidence used by prosecutors is a recording of the 911 phone call, made by the strangulation victim after being attacked. A 911 phone call is important and valuable because it is the first time that a victim may have explained what has happened to her. Typically, when a 911 phone call is being made, the abuser is in or around the home and the victim is still feeling scared, traumatized, or may still be in danger. Any questions asked by the 911 dispatcher would be to address an ongoing emergency. Therefore, the recording should be considered non-testimonial and admissible as hearsay evidence during trial, even in light of Crawford and Giles. A recording of the 911 phone call is also weighty evidence because hearing the voice of a scared and emotional victim seeking help immediately after being attacked can be very “moving for a jury.”82 More importantly, in the specific context of a strangulation case, a recording of the victim’s voice may show that her voice was hoarse, she was coughing, or that she was having difficulty breathing, thereby confirming that victim was in fact strangled. During trial, prosecutors have historically provided a transcript of the 911 phone call recording to the jury so that they can read along during the actual playing of the phone call and more easily comprehend what is being said.83 Or, for a more dramatic effect, prosecutors have presented the transcript of the phone call as a PowerPoint presentation at the same time the recording was being played in court.84 However, even without prosecutorial theatrics, a recording of a 911 phone call is an extremely valuable piece of evidence for evidence-based prosecution in domestic violence strangulation cases.
Photographs and physical evidence are also essential elements to evidence-based prosecution in domestic violence strangulation cases. Photographs of the home where the domestic violence and strangulation incident occurred are important for establishing context for the judge and jury.85 Pictures of overturned furniture, holes in walls, or bodily fluids on the floor may show a judge and the jury how dangerous or frightening the assault was.86 Specifically, urine, defecation, and vomit are signs that the victim was strangled.87 Pictures of these bodily fluids on the floor may help to prove that the victim was in fact strangled even though there were no visible injuries to her neck. However, if there are visible injuries, no matter how minimal they may be, photographs of these injuries are important to show a judge and the jury what the victim went through. In some cases, a victim may actually have fingerprints on her neck or markings resembling a ligature used during strangulation. It can be case-winning to physically line up the ligature used to strangle the victim with a photograph of the victim’s injured neck and have it match perfectly. Even better is to have the ligature that was used to strangle the victim. Some prosecutors actually use the ligature on themselves or on a volunteer to make the incident come to life for a judge or the jury. Physical evidence collected at the scene of a domestic violence incident also helps prosecution. Similar to photographs, physical evidence, such as ripped clothing helps to establish the context of the assault.88 A combination of various photographs and physical evidence is ideal for an evidence-based prosecution.
Medical evaluation forms are another essential piece of evidence used in evidence-based prosecution for proving strangulation. As has been discussed multiple times in this article, strangulation often does not leave visible injuries on the victim. As a result, photographs may not always be available as evidence. Furthermore, the abuser does not always use a ligature, he may just use his hands, and so physical evidence may also be scarce. Therefore, a medical evaluation form detailing strangulation symptoms described first-hand by the victim is valuable. Furthermore, medical personnel documenting internal injuries which were most likely caused by strangulation may be the only way to indicate that a victim was in fact strangled. For these reasons, medical evaluation forms are a critical piece of evidence during trial.89
The final type of evidence, expert testimony during trial, serves two distinct and important functions during a domestic violence strangulation case. First, regardless of whether the victim has obtained medical treatment or not, it can be informative to use a medical expert who can educate the judge and the jury about the physical danger of the act of strangulation.90 Strangulation statistics are not common knowledge, both the judge and the jury need to understand that strangulation can cause unconsciousness within seconds and death in just minutes.91 Explaining the severity of strangulation also assists in demonstrating an abuser’s potentially deadly intent when he put his hands around the victim’s neck and squeezed.92 Second, an expert witness, such as a social worker or psychologist, can be beneficial in explaining the dynamics of domestic violence.93 For the majority of judges and jury members, the issue of power and control in an abusive relationship and the cycle of violence, discussed earlier in this paper, are outside of their understanding or experience.94 Most judges and jury members cannot comprehend why a victim of domestic violence continues to stay in an abusive relationship or refuses to testify against her abuser, especially when he strangles her.95 Judges and juries incorrectly believe that a victim can leave an abusive relationship at any point. In reality, a victim may make numerous unsuccessful attempts to escape her abusive relationship. Often, these attempts result in the victim being physically punished by her abuser, sometimes even strangled.96 An expert witness who can teach a judge and a jury about the dynamics of domestic violence can provide an explanation of the victim’s feelings and thoughts. This may be helpful in explaining why a victim has not left her abuser or why she is not testifying against him.
Although not all five types of evidence are always available, a combination of just a few of the types discussed will make strangulation in domestic violence cases stronger than they currently are.
The nature of evidence-based prosecution requires a prosecutor to rely on both law enforcement officials and, in some cases, emergency room medical personnel to collect evidence at the scene of the domestic violence incident. In doing so, even if a victim refuses to participate or recants, the prosecutor can still have sufficient evidence to bring the strangulation case to trial.97 Unfortunately, as previously discussed, law enforcement officials and medical personnel often focus on visible injuries and overlook the other symptoms and indications of strangulation. The focus of law enforcement officials and emergency room medical personnel is skewed simply because they are not familiar with strangulation, they do not know what signs and symptoms to look for or what questions to ask.98 Strangulation-specific training for law enforcement officials and, when feasible, emergency room medical personnel, will help to ensure that evidence is properly collected so that a prosecutor can go forth with evidence-based prosecution and convict a batterer of strangling his victim. The curriculum of strangulation-specific training for law enforcement officials and emergency room medical personnel should teach three fundamentals: what questions to ask, what symptoms to look for, and the importance of documentation.
Law enforcement officials and emergency room medical personnel are faced with the very important task of figuring out what happened during a strangulation incident. The purpose of questioning a victim is to put together a description of the crime. The initial question should relate to the “mechanism of the injury.”99 It is imperative that law enforcement and medical personnel ask the victim how she was strangled: Did the abuser use one or two hands or was the victim strangled with a ligature?100 A victim or the abuser can even be asked to demonstrate the incident.101 Next, it should be determined for how long a victim was strangled for.102 Follow up questions may include if the victim lost consciousness or experienced any pain including dizziness or faintness, nausea, or difficulty swallowing or breathing.103 These questions are important for two reasons; first, to determine whether or not the victim is in need of immediate medical assistance and second, to create the foundation of the strangulation case against the abuser.104
Victims of domestic violence strangulation may be embarrassed or may minimize the incident.105 Therefore, law enforcement officials and emergency room medical personnel must also be trained in what symptoms of strangulation to look for.106 Law enforcement and medical personnel should check for bruises and fingertip or thumb prints typically located around the ears.107 Tiny red spots, known as petechia, may be found inside of or around the eyes.108 Petechia is a common symptom resulting from strangulation due to ruptured capitularies, but is often confused with pink eye or an indication of drug use.109 Redness and scratches on a victim’s neck may have been caused by the abuser while strangling or by the victim’s own fingernails while trying to fight against the abuser. Abrasions to the chin may have been caused by holding it down in defense of her neck during the attack.110 Law enforcement and medical personnel should also check the suspected abuser for defensive wounds to confirm where his hands or arms were during the strangulation; in particular, bite marks are a common injury.111
Finally, and most importantly, law enforcement officials and emergency room medical personnel need to understand the importance of documentation. There may be a lot of evidence of strangulation, however, if it is not fully and accurately documented, a prosecutor cannot use it at trial.112 Everything that the victim, suspect or witnesses say must be either written down verbatim or electronically recorded.113 Every symptom described by the victim, however insignificant it might seem, must also be noted and photographed.114 It is often helpful to use audio taping to document a change in the victim’s voice due to strangulation. Law enforcement should take multiple photographs of the crime scene and all of the victim’s injuries, no matter how minor they appear.115 Follow-up photographs, taken two to three days after the incident, are also helpful in demonstrating the severity of certain injuries sustained because bruises may not appear until a few days after the incident.116 Although it is not always possible to document all of this evidence, law enforcement officials and emergency room medical personnel need to be educated about the importance of documenting everything and take ever step possible to ensure complete and accurate documentation.
By understanding what questions to ask, what symptoms to look for, and the importance of documentation, law enforcement officials and emergency room medical personnel will help guarantee that prosecutors have all necessary evidence and testimony to bring the strongest case possible to trial.
Although strangulation, one of the most lethal forms of domestic violence, has a history of being minimized by all members of the criminal justice system, it is still possible to curtail this occurrence. However, ending strangulation in domestic violence cannot be done by one group; it requires all members of the criminal justice system to work together.117 If emergency room medical personnel, law enforcement officials, and prosecutors collaborate, in a system which unites evidence-based prosecution with trained investigative skills, it is possible to hold abusers accountable and obtain justice for victims of strangulation. Although this may not happen immediately, cases previously thought to be inadequate, could possibly be prosecuted as misdemeanors and cases previously thought to be misdemeanors should be prosecuted as felonies.118 In general, ending minimization of strangulation and aggressively addressing the problem may alert abusers and prevent them from strangling their victims or, at least, encourage more strangulation victims to seek help.
1.) Allison Turkel, Understanding, Investigating, and Prosecuting Strangulation Cases, 41 DEC PROSC 20, 20 (2007) (discussing the dangerous nature of strangulation)
2.) Gael B. Strack & Eugene Hyman, Your Patient. My Client. Her Safety: A Physician’s Guide to Avoiding the Courtroom While Helping Victims of Domestic Violence, 11 DePaul J. Health Care L. 33, 59 (2007) (describing strangulation as one of the most lethal forms of domestic violence).
3.) Turkel, supra at 20 (describing an allegation of strangulation).
4.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (discussing strangulation may indicate an ongoing pattern of abuse and foreshadows escalating violence); See also, Strack & Hyman, supra at 59 (explaining strangulation leaves no visible injuries).
5.) Gael B. Strack, Dr. George E. McClane & Dr. Dean Hawley, A Review of 300 Attempted Strangulation Cases, Part II: Clinical Evaluation of the Surviving Victim, 21 J. Emergency Med. 311, 311 (2001) (formally defining strangulation).
6.) Id. (formally defining choking).
10.) Strack, McClane & Hawley, supra at 311 (describing the clinical sequence of strangulation).
11.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (listing possible physical injuries of strangulation).
12.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (listing possible neurological injuries of strangulation).
13.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (listing possible psychological injuries of strangulation).
14.) Gael B. Strack, Dr. George E. McClane & Dr. Dean Hawley, A Review of 300 Attempted Strangulation Cases, Part I: Criminal Legal Issues, 21 J. Emergency Med. 303, 308 (2001)
15.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (discussing strangulation may indicate an ongoing pattern of abuse).
16.) Resource Materials on Strangulation, New York Correction History Society, http://www.correctionhistory.org/northcountry/html/knowlaw/strangulation3.htm (last visited on November 30, 2011) (providing material used at the New York Prosecutors Training Institute).
17.) Fact Sheet of Strangulation Assaults in Domestic Violence Cases, Ortner-Unity, http://www.sp2.upenn.edu/ortner/docs/factsheet_strangulation.pdf (last visited October 30, 2011) (discussing strangulation may foreshadow escalating violence).
18.) Resource Materials on Strangulation, New York Correction History Society, http://www.correctionhistory.org/northcountry/html/knowlaw/strangulation3.htm (last visited on November 30, 2011) (providing material used at the New York Prosecutors Training Institute).
19.) Turkel, supra at 21 (discussing a perpetrator’s homicidal intent).
20.) Strack & Hyman, supra at 59
21.) Strack, McClane & Hawley, supra at 314
22.) Id. at 312
23.) Turkel, supra at 21
24.) Strack & Hyman, supra, at 59 (describing strangulation as one of the most lethal forms of domestic violence).
25.) Strack & McClane, supra at 13 (discussing minimization of strangulation by police officers and prosecutors).
26.) Id. at 1 (discussing victim minimization of strangulation).
27.) Id. at 3.
28.) Eleanor Simon, Confrontation and Domestic Violence Post-Davis: Is There and Should There be a Doctrinal Exception?, 17 Mich. J. Gender& L. 175, 185 (2011)
30.) Tom Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev. 747, 768 (2005).
31.) Erin Leigh Claypoole, Evidence-Based Prosecution: Prosecuting Domestic Violence Cases Without a Victim, 39 Feb Prosc 18, 20 (2005).
32.) Laurence Busching, Rethinking Strategies for Prosecution of Domestic Violence in the Wake of Crawford, 71 Brook. L. Rev. 391, 394 (2005) (describing hearsay evidence used in domestic violence prosecutions).
34.) Donna D. Bloom, “Utter Excitement” About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford v. Washington, 36 St. Mary's L.J. 717, 728 (2005) (describing a domestic violence victim’s lack of cooperation).
35.) Katherine G. Breitenbach, Battling the Threat: The Successful Prosecution of Domestic Violence after Davis v. Washington, 71 Alb. L. Rev. 1255, 1255 (2008) (describing the tension-building stage)
36.) Id. at 1257 (describing the violent stage).
37.) Id. (describing the honeymoon stage).
39.) Bloom, supra at 728.
40.) Id. at 728-729 (explaining how batterer’s manipulate their victims).
41.) Id. at 728
43.) Aiysha Hussain, Reviving Hope for Domestic Violence Prosecutions: Giles v. California, 46 Am. Crim. L. Rev. 1301, 1302 (2009).
44.) Bloom, supra at 728-729 (describing retaliatory methods used by batterer’s against victims); See also Breitenbach, supra at 1257 (listing reasons why victims recant).
45.) Bloom, supra at 728.
46.) Id. at 728-729.
47.) Id. at 729.
48.) Id. at 728-729.
49.) Id. at 729.
50.) Busching, supra at 394.
51.) Lininger, supra at 771 (describing the value of hearsay in prosecuting a domestic violence case).
53.) See Generally, Crawford v. Washington, 541 U.S. 36 (2004) (stating that hearsay may violate the Confrontation Clause and a defendant’s 6th Amendment rights).
54.) Crawford v. Washington, 541 U.S. 36 (2004)
55.) Id. (holding of case).
56.) Bloom, supra at 720-721 (listing examples of testimonial statements).
57.) Id. at 737.
58.) Id. 737-738 (defining interim uncertainty).
59.) Washington v. Davis, 547 U.S. 813 (2006).
60.) Id. at 814 (defining non-testimonial statements).
61.) Simon, supra at 181 (defining testimonial statements in light of Washington v. Davis).
64.) Id. (describing the primary purpose and ongoing emergency test articled by the Court in Washington v. Davis).
65.) Breitenbach, supra at 1276.
66.) Id. at 1276-1277.
67.) Giles v. California, 554 U.S. 353 (2008).
68.) Id. at 358 (defining Forfeiture by Wrongdoing).
69.) Id. at 361-362 (holding of case).
71.) Hussain, supra at 1309 (describing the practical effect of Giles).
72.) Stack, McClane & Hawley, supra at 312.
77.) Strack & McClane, supra at 1.
78.) Turkel, supra at 21.
79.) Claypoole, supra at 18.
80.) Id. (defining evidence based prosecution).
82.) Id. at 21 (describing benefits of a 911 phone call recording).
85.) Id. at 20 (describing benefits of photographs).
87.) Turkel, supra 21-22.
89.) Strack & Hyman, supra at 51.
90.) Strack & McClane, supra at 11-12 (discussing use of an expert witness).
92.) Turkel, supra at 21.
93.) Claypoole, supra at 21.
96.) Strack & Hyman, supra at 41.
97.) Breitenbach, supra at 1279.
98.) Strack, McClane & Hawley, supra at 308.
99.) Turkel, supra at 21.
100.) Id. at 21-22 (listing questions to ask a victim of strangulation).
103.) Strack & McClane, supra at 6-7 (listing follow-up questions).
104.) Turkel, supra at 21
105.) Strack & McClane, supra at 8.
107.) Tukel, supra at 22.
109.) Id. (discussing and describing petechia).
112.) Strack & Hyman, supra at 51.
113.) Id. (discussing importance of documentation).
114.) Id. at 60.
116.) Strack & McClane, supra at 8 (discussing importance of follow-up photographs).
117.) Strack & Hyman, supra at 34.
118.) Strack, McClane & Hawley, supra at 308.