Bailey Wharton, Associate Member, University of Cincinnati Law Review
I. Introduction
Despite having support from essentially all of the important legal and legislative players, Ohio remains the only state in the country where strangulation is not a felony offense.[1] Over the last several decades, with more and more research conducted on the effects of strangulation and its prevalence in the domestic violence context, many states have enacted strangulation-specific laws to aid in more fervent prosecution of strangulation, particularly in cases of domestic abuse.[2] Despite all of the evidence showing “unequivocally that strangulation is one of the most lethal forms of domestic violence,”[3] Ohio’s failure to elevate the crime of strangulation to its own felony charge results in “a mere ‘slap on the wrist’ for the abuser,” which is grossly inadequate.[4]
Part II of this article will lay out the legislative history of Ohio’s strangulation laws. Part III will discuss why stronger strangulation laws are necessary in the domestic violence context, as well as lay out the need for Ohio to catch up to the rest of the country in how it handles domestic strangulation cases.
II. Strangulation Laws in Ohio
A. Current Status
As it stands today, Ohio is the only state in the United States to not classify strangulation as a felony in any capacity.[5] In 48 states, the crime of strangulation has been separated from the crime of assault into its own felony charge.[6]
Currently, in Ohio, there is a gap in the law when it comes to strangulation. Non-fatal strangulation is typically charged as either misdemeanor assault or misdemeanor domestic violence, and strangulation that results in death is charged as homicide.[7] As a result, non-fatal strangulation charges in Ohio are limited to the relatively lenient sentencing associated with misdemeanors, despite warranting a far more serious charge.
In Ohio, the potential penalties for first-degree misdemeanor assault include a jail sentence up to 180 days,[8] fines up to $1,000,[9] and/or up to five years of probation,[10] whereas misdemeanor domestic abuse charges do not have required prison sentences for a first conviction.[11]
For comparison, in states that have enacted felony strangulation laws, the potential penalties for a strangulation charge are much more severe. For example, in Massachusetts, the first conviction for felony strangulation carries up to a five-year prison sentence and a $5,000 fine, with repeat offenders facing up to ten years and a $10,000 fine.[12] In Minnesota, a person convicted of felony strangulation faces up to 3 years in prison,[13] while in Rhode Island, felony strangulation carries a maximum of 10 years.[14] Altogether, Ohio lags dangerously behind the rest of the nation in the severity with which it treats strangulation.
B. Pending Legislation
Currently, two important laws are pending in the Ohio legislature. The first is H.B. 3.[15] This law, known as ‘Aisha’s Law’—named after Aisha Fraser, a Cleveland woman who was killed in a domestic violence attack by her ex-husband—endeavors to create additional protections for domestic violence survivors.[16] The bill, which was passed by the Ohio House in October 2021 and referred to the Ohio Senate Judiciary Committee in November 2021, seeks to expand the definition of domestic violence to include strangulation and suffocation.[17] The bill would make violation of the new strangulation provision a third degree felony with the option for it to become a second degree felony “if the offender previously was convicted of the offense of domestic violence or of two or more ‘offenses of violence.’”[18]
The second is S.B. 90.[19] This law proposes designating strangulation as a felony offense.[20] The bill was introduced to the Ohio Senate in February 2021 but is still in the Senate Committee.[21] Both of these bills are promising developments, but the Ohio legislature has failed to act on such legislation in the past.
C. Legislative History
H.B. 3 and S.B. 90 are not the first felony strangulation bills to come before the Ohio legislature. In 2015, H.B. 362 passed in the House, but died in the Senate Criminal Justice Committee.[22] In 2017, S.B. 207 passed in the Senate, but died in the House.[23] In 2019, S.B. 43 was introduced in the Senate, but died in the Senate Government Oversight and Reform Committee.[24]
In fact, this is the second time that H.B. 3 is making its rounds through the legislature. While it originally passed in the House in 2020, it subsequently died in the Senate Judiciary Committee.[25] However, it was re-introduced in the House in 2021 where it passed and is currently making its way through the Senate Judiciary Committee.[26] It is incredibly important that the Senate Judicial Committee not allow this bill to die for the second time. It is clear from the introduction of stronger and more specified strangulation bills across the country that this is an important issue, so to fail to pass it yet again would be an incredible disappointment, specifically in the arena of protecting victims of domestic violence.
III. Discussion
A. Importance of Strangulation Laws in Domestic Violence Context
Ohio’s current strangulation laws do not proportionally reflect the serious threat posed by strangulation. Because strangulation rarely leaves immediate or lasting visible external injuries,[27] it is difficult to prove under Ohio’s current assault and felonious assault statutes which require proof of “serious physical harm.”[28] But in fact, strangulation is an incredibly life-threatening form of violence, regardless of whether any resulting damage is evident to the naked eye.[29] It only takes about ten seconds of strangulation pressure to cause unconsciousness, about one minute to cause brain damage, and two minutes or less to cause death.[30] Furthermore, strangulation cases may result in a host of severe physical injuries, such as neck swelling, abrasions, internal bleeding, fractured hyoid, and pulmonary edema,[31] as well as severe mental trauma, such as amnesia, anxiety, depression, psychosis, and behavioral changes.[32] While some injuries like scratches and abrasions may be visible almost instantly, many of the other physical and emotional injuries may take days, weeks, or months to be detected.[33] As a result, the dangers of strangulation are minimized or ignored, often leading to the treatment of strangulation by law enforcement or the justice system as a less than lethal offense.[34]
The threat posed by strangulation in a domestic violence context is uniquely chilling. Studies have shown that “30-68% of women in abusive relationships have been strangled by their partners in some point in the relationship” and that “87% of the incidents of nonfatal strangulation were accompanied by death threats.”[35] In fact, evidence suggests that “prior strangulation is a strong predictive factor for future homicides.”[36]
Therefore, because “strangulation in domestic violence cases is so prevalent, severe, and often predictive of future life-threatening abuse,” it is essential for the Ohio legislature step up and prioritize passing the pending felony strangulation bills.[37]
B. Effects of Felony Strangulation Laws
One of the most prominent effects of implementing felony strangulation laws has been the emphasis on strangulation as a serious crime in need of more robust inquiry into the issue of strangulation in domestic violence situations.[38] According to a report analyzing Minnesota’s strangulation law, the law “enhanc[ed] victim safety and [held] offenders accountable, as well as increased[ed] general awareness of the severity and potential deadliness of domestic strangulation.”[39] What’s more, within the first year and a half after implementation of its felony strangulation law, Minnesota saw “a [61%] increase in cases charged and the conviction rate…increased from [17%] to [38%].”[40]
Similar results were found in New York, showing that Minnesota’s outcome was not an isolated sample. A study which analyzed New York’s strangulation law “found that perpetrators who had previously avoided any punishment because of a lack of visible injuries were now facing criminal sanctions for their life-threatening behavior.”[41] In fact, within the first thirteen weeks after the implementation of New York’s strangulation laws in 2010, over two thousand offenders were arrested, and interestingly, “[a]s of 2010, New York has seen the lowest domestic and intimate partner homicide rates since 2007.”[42]
C. Ohio Needs to Step Up
There is no longer an excuse for Ohio to not have more explicit and proactive strangulation laws.[43] Passage of either H.B. 3 or S.B. 90 will go a long way toward closing the gap of extremes between no charges or murder charges in domestic strangulation cases.[44] Just because a person is not strangled to death does not mean that a serious and dangerous crime has not been committed, and Ohio law must adapt to reflect this reality. There is plenty of evidence available showing the extreme risk strangulation poses.[45] “While the external injuries of strangulation fail to capture the gravity of the crime, the internal injuries and risk of death appropriately convey the dangers.”[46]
Additionally, the Ohio legislature is not the only entity that must take action to step up protections for victims of non-fatal strangulation. While making strangulation a felony crime in and of itself will help to emphasize that strangulation is a serious crime and must be treated accordingly, it is also up to those in the legal, law enforcement, and medical communities to actively educate, train, and provide more substantive protections to victims of domestic non-fatal strangulation.[47] One way to do this would be for law enforcement to undergo additional training on how to spot evidence of strangulation, how to more thoroughly investigate strangulation cases, and how to better engage with victims of domestic abuse. Also, coordination with advocacy groups specializing in ending domestic abuse to educate about the dangers of strangulation would go a long way in emphasizing the seriousness of strangulation to hopefully never miss or minimize the threat of strangulation.
IV. Conclusion
Stronger strangulation laws and victim protection advocacy are past due in Ohio. To be the last state without any form of felony strangulation legislation is embarrassing. It is time that the Ohio legislature implements a separate strangulation law “so that there is a consequence that is commensurate with the level of violence” associated with strangulation.[48] The evidence is clear that domestic strangulation is a strong predictor of future homicide, and New York and other states have shown that legislation can actually make strides towards lowering domestic homicide rates.[49] The lack of urgency on the part of the Ohio legislature continues to show that domestic violence, and protecting the victims of domestic violence, is not a priority. This must change, and change must come from the top. With strangulation-specific laws on the books in Ohio, strangulation will become much easier to charge and harder to ignore.
[1] Alex Stokes & Jen Steer, ‘Shameful’: Ohio remaining state where strangulation isn’t a felony, Fox 8 (Oct. 14, 2021, 4:33 PM), https://fox8.com/news/ohio-remaining-state-where-strangulation-isnt-a-felony/ [https://perma.cc/RP7U-ZNJE]; Anne Saker, 48 states have toughened laws on strangulation, a factor in domestic violence. But not Ohio, The Enquirer (Dec. 13, 2021, 10:00 PM), https://www.cincinnati.com/story/news/2021/12/14/strangulation-domestic-violence-ohio-felony-brain-damage-homicide-laws/8796952002/; Jan Larson McLaughlin, Ohio the only state left without felony strangulation law, BG Independent News (July 2, 2021), https://bgindependentmedia.org/ohio-the-only-state-left-without-felony-strangulation-law/ [https://perma.cc/N4BE-9DMK] (In Ohio, strangulation is only considered a misdemeanor).
[2] Archana Nath, Survival or Suffocation: Can Minnesota’s New Strangulation Law Overcome Implicit Biases in the Justice System, 25 Law & Ineq. 253, 272 (2007) (“Once research began to show that strangulation was in fact a serious and prevalent form of domestic violence, the Minnesota Legislature was presented with the request for stronger punishments…[and] [u]nder Minnesota’s new Strangulation Statute, an abuser cannot be charged with a felony, punishable by up to three years in prison, for strangling his partner.”); Kaley S. Chan, Getting a Grip on Strangulation: Enumerating Strangulation in the UCMJ Will Help the Fight Against Domestic Abuse, Army Law. 43, 45 (2018) (“In a 2009 review of strangulation laws across the country, experts in intimate partner violence recommended “that all states develop policies to improve prosecution of strangulation…[and] include strangulation in their criminal codes.””); Elie A. Maalouf, Tougher Measures: How the New Massachusetts Strangulation Law Demonstrates the Need for Stricter Penalties and “No-Drop” Prosecution Policies in Domestic Violence Disputes, 50 Suffolk U. L. Rev. 295, 303 (2017) (“The Texas strangulation statute provides for a solid example of a compressive strangulation law because it clearly identifies the crime as a felony…and the penalties increase for repeat offenders.”); Nicole Verdi, Releasing the Stranglehold on Domestic Violence Victims: Implications and Effects of Rhode Island’s Domestic Assault Strangulation Statute, 18 Roger Williams U. L. Rev. 255, 260 (2013) (“[T]he Rhode Island legislature passed a statute making strangulation a felony subject to a maximum penalty of ten years in jail.”).
[3] Gael B. Strack & Casey Gwinn, On the Edge of Homicide: Strangulation as a Prelude, 26 Crim. Just. 32, 33 (2011).
[4] Nath, supra note 2, at 270.
[5] Stokes & Steer, supra note 1; Saker, supra note 1; Jan Larson McLaughlin, supra note 1 (In Ohio, strangulation is only considered a misdemeanor).
[6] Stokes & Steer, supra note 1 (Strangulation falls under other felony offenses in South Carolina, but it is not classified as its own separate felony charge); Saker, supra note 1; c.f. Chan, supra note 2, at 45 (“Congress demonstrated its support when it passed The Violence Against Women Reauthorization Act of 2013 and specifically added a provision for “strangling, suffocating, or attempting to strangle or suffocate” one’s “spouse, intimate partner, or dating partner” to the federal assault statute.”).
[7] Saker, supra note 1.
[8] See Ohio Rev. Code § 2929.24(A)(1) (2011).
[9] See Ohio Rev. Code § 2929.28(A)(2)(a)(i) (2020).
[10] See Ohio Rev. Code § 2929.25(A)(2) (2016).
[11] See Saker, supra note 1.
[12] Maalouf, supra note 2, at 305.
[13] Nath, supra note 2, at 272.
[14] Verdi, supra note 2, at 260.
[15] H.B. 3, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
[16] Hope Sloop & Lydia Esparra, Ohio House passes “Aisha’s Law” bill that grants additional protections to domestic violence survivors, WKYC Studios (Oct. 27, 2021, 11:14 PM), https://www.wkyc.com/article/news/local/cleveland/ohio-house-hb3-aishas-law-passes-goes-to-senate/95-3035ce53-4e6f-4323-84c7-3c97456c2a5a [https://perma.cc/W9PR-8CYP]; Susan Tebben, ‘Aisha’s Law’ on domestic violence passed out of committee, Ohio Capital Journal (Oct. 25, 2021, 12:04 AM), https://ohiocapitaljournal.com/2021/10/25/aishas-law-on-domestic-violence-passed-out-of-committee/ [https://perma.cc/2CYY-HGBQ].
[17] Tebben, supra note 16; Josh Croup, Push to strengthen domestic violence laws in Ohio, 13 ABC Action News (Oct. 21, 2021, 6:12 PM), https://www.13abc.com/2021/10/21/push-strengthen-domestic-violence-laws-ohio/#:~:text=Ohio%20is%20the%20only%20state,couple%20it%20with%20other%20crimes [https://perma.cc/2DTY-PGJG]; Ohio H.B. 3.
[18] Ohio H.B. 3.
[19] S.B. 90, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
[20] Sarah Buduson, Strangled: How Ohio fails to protect the public from the most dangerous criminals, News 5 Cleveland (May 21, 2021, 11:19 AM), https://www.news5cleveland.com/news/local-news/investigations/strangled-how-ohio-fails-to-protect-the-public-from-the-most-dangerous-criminals; Michelle Taylor, ‘Aisha’s Law’ House Approval Moves Ohio Closer to Felony Strangulation, Forensic (Oct. 25, 2021), https://www.forensicmag.com/580408-Aisha-s-Law-House-Approval-Moves-Ohio-a-Tad-Closer-to-Felony-Strangulation/ [https://perma.cc/N4T2-CEP4];
[21] Buduson, supra note 20; Taylor, supra note 20.
[22] H.B. 362, 131st Gen. Assemb., Reg. Sess. (Ohio 2015); Saker, supra note 1.
[23] S.B. 207, 132nd Gen. Assemb., Reg. Sess. (Ohio 2017); Saker, supra note 1.
[24] S.B. 42, 133rd Gen. Assemb., Reg. Sess. (Ohio 2019); Saker, supra note 1.
[25] H.B. 3, 133rd Gen. Assemb., Reg. Sess. (Ohio 2020); Saker, supra note 1.
[26] Saker, supra note 1.
[27] See Strack & Gwinn, supra note 3, at 33 (“[M]ost strangulation cases produce minor or no visible injury.”); see Verdi, supra note 2, at 265 (“Of the 300 domestic violence cases involved in the study, 50% of the victims had no visible injuries and 35% of the victims had injuries too minor to photograph.”).
[28] See Ohio Rev. Code § 2903.11 (2019); see Ohio Rev. Code § 2903.13 (2013); c.f Strack & Gwinn, supra note 3, at 33 (“The lack of physical evidence was causing the criminal justice system to treat many “choking” cases as minor incidents, when, in fact, such cases were among the most legal and violent cases in the system.”); c.f. Chan, supra note 2, at 44 (“The study found that in eighty-five percent of the cases, there was a lack of visible injury of strangulation sufficient to sustain a conviction.”).
[29] Strack & Gwinn, supra note 3, at 33 (“[S]trangulation is one of the most lethal forms of domestic violence.”).
[30] Saker, supra note 1; Nath, supra note 2, 267; Strack & Gwinn, supra note 3, at 33.
[31] Nath, supra note 2, at 268; Chan, supra note 2, at 44; Verdi, supra note 2, at 266.
[32] Nath, supra note 2, at 268; Chan, supra note 2, at 44; Verdi, supra note 2, at 266; Strack & Gwinn, supra note 3, at 33; Maalouf, supra note 2, at 301.
[33] Chan, supra note 2, at 44; Verdi, supra note 2, at 266.
[34] Chan, supra note 2, at 44.
[35] Nath, supra note 2, at 268-69.
[36] Nath, supra note 2, at 269 (Findings by The Chicago Women’s Health Risk Study show that “at least 56.4% of abused women eventually killed were previously strangled by their abusers…[and] 17.5% of domestic violence homicides were male offenders killed female victims were caused by strangulation, and that previous strangulation within the past year was highly predictive of this outcome.”); Chan, supra note 2, at 43 (“Research into domestic-violence-related homicides shows that a history of non-fatal strangulation is ‘one of the most accurate predictors for the subsequent homicide of victims of domestic violence.’ One such study found that women who have been subject to a non-fatal strangulation incident were approximately 700 percent more likely to be the victim of homicide than other domestic violence victims.”); Verdi, supra note 2, at 256 (“[W]omen who have been non-fatally strangled by their intimate partners are substantially more likely to be killed by that same partner.”); Strack & Gwinn, supra note 3, at 34 (“Strangulation is, in fact, one of the best predictors for the subsequent homicide of victims of domestic violence.”).
[37] Nath, supra note 2, at 270; Chan, supra note 2, at 43 (“A 2010 Center for Disease Control and Prevention (DCD) study estimated that 1.1 million women were strangled or suffocated in the preceding twelve months, and more than 11.6 million women who participated in the survey had been strangled or suffocated in their lifetime.”); Verdi, supra note 2, at 263 (“Strangulation accounts for ten percent of all violent deaths annually in the United States. Of those ten percent, about ninety percent of those murders by strangulation are domestic violence related.”).
[38] Nath, supra note 2, at 273; see also Chan, supra note 2, at 45 (“The evolution in the landscape of domestic violence and strangulation offenses with recent legislation has positively impacted not only punitive disposition, but also awareness and training dedicated to investigating and prosecuting these offenses.”).
[39] Verdi, supra note 2, at 272 (internal citations omitted).
[40] Chan, supra note 2, at 45 (internal citations omitted).
[41] Verdi, supra note 2, at 272 (internal citations omitted); see also Chan, supra note 2, at 45 (“Advocates noted that the law helped to bring some dangerous first-time domestic abusers to the system’s attention sooner than if they had been charged with misdemeanors for strangling their victims.”) (internal citations omitted).
[42] Chan, supra note 2, at 45.
[43] See id. at 44 (“[M]any experts agree…that strangulation offenses should be treated as presumptive felonies.”).
[44] Strack & Gwinn, supra note 3, at 69 (“[T]he study found that perpetrators who had previously avoided any punishment because of a lack of visible injuries were not facing criminal sanctions for their life-threatening behavior. Researchers concluded…that the previous gap in the law, between no charges and murder charges, was not being rectified by this innovative intervention tool.”).
[45] Verdi, supra note 2, at 271 (State legislatures are implementing stronger strangulation laws “in response to research and surveys conducted on the prevalence of domestic partner non-fatal strangulation and a determination that non-fatal domestic partner strangulation is a precursor to death for many victims.”).
[46] Maalouf, supra note 2, at 300.
[47] See Nath, supra note 2, at 273; Strack & Gwinn, supra note 3, at 34 (emphasizing “the need for any professional working with victims of intimate partner violence to take strangulation seriously and to educate themselves on local resources and laws.”).
[48] Sanker, supra note 1.
[49] Nath, supra note 2, at 269; see also Chan, supra note 2, at 45.
