In Sexual Assault Cases, New Laws on Strangulation Aid Prosecution

Advocates are pushing for enhanced charges and new research on strangulation to put more rapists behind bars.

Advocates are pushing for enhanced charges and new research on strangulation to put more rapists behind bars. Shutterstock

Content note: This article contains graphic descriptions of sexual violence.

It was the rope around her neck that helped send Richard Cori Harth to the penitentiary.

Three years ago, Harth was charged with strangling and raping a woman on the Fourth of July in a small town in southwestern Virginia. As the Roanoke Times reported at the time, Harth and this woman had been drinking together at a hotel pool before he allegedly took her to his tent, where he tied her up by her neck and wrists and then raped her, including anally and with an object.

At first, prosecutors in rural Botetourt County believed they had a strong case against Harth, who faced multiple lengthy sentences if convicted of these felony and misdemeanor crimes. But their case began to crumble once Harth’s alleged victim chose not to testify against him. Per the newspaper’s account, prosecutors told the judge that the victim was suffering from post-traumatic stress disorder, as well as medical complications from having recently given birth, and no longer wanted to testify.

Botetourt County Commonwealth Attorney Joel Branscom, who helped prosecute the case in 2013, told Rewire that the victim left town and stopped cooperating with prosecutors. But Harth did not get off scot-free, as is often the case for rape suspects, but particularly those whose alleged victims do not testify against them. Instead, Botetourt County prosecutors employed a brand-new legal tool at their disposal.

Just three days before Harth, now 25, had allegedly tied that rope around the victim’s neck, Virginia had enacted a new statute making the act of strangulation a felony crime, punishable by up to five years in jail. Strangulation is often misconstrued as “choking,” but experts believe there is an important distinction between the two. Choking involves the obstruction of an airway—often from food or vomit—while strangulation describes the intentional action of applying pressure on the neck to cut off another’s air supply and blood circulation in an effort to subdue or kill her. In this case, putting pressure on the neck is no different from putting a gun to a woman’s head or slipping drugs into her drink: It’s all about control.

Before, strangulation crimes were often classified as misdemeanor assaults. But Virginia is among many states that have enacted felony strangulation statutes in recent years, creating a legal tool to help prosecutors increase conviction rates and sentences in crimes that are notoriously difficult to prosecute, such as sexual assault and domestic violence cases. It’s the intentional and potentially lethal nature of strangulation—something medical and legal experts have only identified in the last two decades—that has led to heightened sentences. Additionally, legal and medical experts who work with sexual assault and domestic violence victims are increasingly paying closer attention to incidents of strangulation, both for its detrimental health risks and its new legal implications.

Bolstered by the force of this new statute, and ligature marks from the rope on the victim’s body, prosecutors offered Harth the ability to plead no contest to the felony strangulation and “object sexual penetration” charges and serve two-and-a-half years in jail, plus probation. Harth—who maintained his innocence at the time—took the plea deal, and prosecutors dropped the remaining rape, sodomy, and abduction charges. He was released from jail last month and is currently on probation.

“I don’t know that anybody was happy with the way [this case] turned out,” Branscom said, adding, “We believe that Mr. Harth was kind of a scary individual.”

But given the victim’s refusal to testify, Branscom said, the fact that Harth did serve some jail time and had to register as a sex offender was the best they could hope for, and he credited the state’s new strangulation statute in part for these results.

“Ultimately as a prosecutor you can’t rise above the evidence you’re able to present in court,” Branscom said. “You can’t ask him to go to the penitentiary for life without the cooperation of the people involved. So, as unfortunately happens a lot, we do the best we can and hope that we get them on the registry. We get them some time. We get them on probation. And when they get out, we make a record of it so we can try to deal with it in the future.”

More States Acknowledge Seriousness of Strangulation With Felony Statutes

The proliferation of statutes creating enhanced sentences for strangulation crimes stems, in part, from the 1995 deaths of two San Diego domestic violence victims: Casondra Stewart, 17, and Tamara Smith, 16, were respectively stabbed and set on fire by their older boyfriends. While investigating these murders, San Diego police and prosecutors discovered that both women had been previously strangled by their boyfriends.

This discovery sent then-San Diego City Attorney Casey Gwinn and then-Assistant City Attorney Gael Strack on a quest to figure out how to better handle domestic violence cases that involve strangulation, as they documented in a 2011 article published in the American Bar Association’s Criminal Justice magazine. Strack began studying the specifics of strangulation cases submitted for prosecution in San Diego and soon learned that most of the victims lacked visible injuries or evidence to corroborate that they were strangled. The study, later published in the Journal of Emergency Medicine and co-authored by emergency physician Dr. George McClane and pathologist Dr. Dean Hawley, additionally found that many victims suffer serious and sometimes deadly internal injuries and that most victims are women and most perpetrators are men.

Subsequent studies have shown strangulation to be a precursor for murder, finding that between 47 and 68 percent of domestic violence victims have been strangled by their partners and that when a perpetrator strangles his domestic partner one time, the likelihood he will end up killing her (often with a more explicitly deadly weapon, like a gun or a knife) increases seven-fold.

“When a man puts his hand over a woman’s neck once, he has just raised his hand and said he’s a killer,” Gwinn said, speaking alongside Strack on a panel at last month’s National Conference on Health and Domestic Violence in Washington, D.C., sponsored by victims’ advocacy group Futures Without Violence. “He may not be trying to kill her, but he is wanting her to know that he can kill her so that she will live with that reality day in and day out for the rest of her life.”

In 2002 Gwinn and Strack co-founded the San Diego Family Justice Center and a few years later launched the National Family Justice Center Alliance, which provides domestic-violence-related technical assistance and training models to family justice centers across the United States. In 2011, they started the Training Institute on Strangulation Prevention, launched with support from the U.S. Department of Justice. Within this program, faculty train police officers on what to do when a victim says, “He choked me,” and teach prosecutors what they need to know about the medical ramifications of strangulation to prosecute these cases. They encourage describing strangulation in terms of being “non-fatal” or “near-fatal.”

While the relationship between strangulation and domestic violence is well-documented, the role strangulation plays in sexual assault is less clear. Because of aggressive training in the law enforcement, medical, and legal communities, domestic violence victims are now typically asked about strangulation and treated for injuries. And increasingly, sexual assault victims are too, particularly at hospitals or clinics with programs that specialize in sexual assault forensic examinations. However, several sexual assault experts told Rewire that lack of understanding on this issue persists in hospitals and police stations throughout the country, which is why they are eager for more training, more felony strangulation statutes, and more research.

Strack told Rewire in an interview that the Training Institute on Strangulation Prevention has lobbied governments in all 50 states to elevate strangulation charges to felony-level offenses, given the potentially deadly nature of this crime. At least 37 states have passed special felony strangulation laws in recent years, most within the last decade, according to the August/September 2014 issue of the Civic Research Institute’s Domestic Violence Report. And in 2013, the reauthorized Violence Against Women Act added strangulation language to federal law for the first time.

It is too soon to assess the effects of these laws in most of these states, though some have already reported impacts. Minnesota advocacy group WATCH reported in 2007 that the state’s two-year-old felony strangulation law led to increased awareness among law enforcement officers and judges of the potential lethality of strangulation, higher bail amounts, and more convictions of strangulation crimes. Even rural Botetourt County has seen about three convictions since the state passed this new strangulation law, Commonwealth Attorney Joel Branscom said.

Felony strangulation measures usually garner bipartisan support, Strack said. However, some state lawmakers and governors are reluctant to enact these laws. For example, West Virginia Gov. Earl Ray Tomblin (D) recently vetoed a felony strangulation bill, arguing that the legislation was unnecessary because state law already prohibits and punishes strangulation. The Charleston Gazette reported that local advocates and law enforcement disagree with the governor that current state law is sufficient to consistently charge strangulation crimes as felonies, and say they were not given an opportunity to educate the governor on the legislation.

Strack believes opposition to these new laws stems from ignorance on the seriousness of strangulation and what advocates see is a need to recognize it as a felony crime.

“I think the reason why we don’t have all 50 states right now is that some states perceive it as creating another felony, creating more overcrowding in jail,” she said. “And we argue that it is a homicide prevention effort and acknowledgement that we missed it and that people need to be held accountable for the crimes that they commit.”

Now that many in the medical and criminal justice communities realize the relationship between strangulation and domestic violence, Strack and other researchers are trying to learn more about the relationship between strangulation and sexual assault. Current estimates put the incidence of strangulation during sexual assault at 15 percent, but many in the field believe the reality is likely higher.

“We believe there are more victims being strangled than we know about,” Strack told Rewire.

That’s why her team at the National Family Justice Center Alliance is currently conducting a nationwide survey of sexual assault victims who have been strangled. She said she hopes to interview at least 100 people before they analyze the data.

Other researchers in California are working on an even larger study on the patterns present between sexual assault victims who were strangled. Malinda Wheeler, a forensic nurse examiner, is working with the University of California, Los Angeles to examine sexual assault cases involving strangulation in the LA area over the last decade. Wheeler, who runs a network of LA-area sexual assault centers called Forensic Nurse Specialists Inc., said one of her goals in producing this research—which she hopes will be published later this year—is to help medical examiners testify to the potentially lethal and very intentional nature of strangulation.

“The important thing about strangulation is that it’s never accidental,” Wheeler told Rewire in an interview. “It’s not like, ‘Oh, I tripped, and my hands happened to fall around her neck and I really didn’t mean to cut off her blood supply and oxygen supply to her brain and have her pass out and almost die.’”

Dangerous, Deadly

As anyone who has watched the video of Staten Island police killing Eric Garner knows, strangulation—in that case in the form of a chokehold—can be deadly.

But when it does not immediately lead to death, people tend to think that being strangled is a temporary state. Someone puts their hands around your neck, squeezes for several seconds, and then it’s over.

Except that often it’s not over. Strangulation can permanently injure victims. What makes strangulation so dangerous, experts say, is that the neck is not a well-protected part of the body.

“Strangulation, like an automobile accident, is blunt force trauma to the neck,” said Jennifer Pierce-Weeks, a forensic nurse examiner and the education director at a professional membership organization of forensic nurses called the International Association of Forensic Nurses, based in Elkridge, Maryland, near Baltimore. “It’s just the mechanism that caused the blunt force trauma that’s different.”

When someone strangles another person, he is basically cutting off her air supply and preventing oxygen from reaching her brain. The longer the oxygen supply is disrupted, the more severe the consequences. Strangulation victims, especially those who are strangled multiple times in an abusive relationship, can develop neurological symptoms over time, such as speech impediments or stroke-like symptoms.

A common injury that can result from strangulation is a fractured larynx, which forces air into the tissues instead of the lungs. If not treated immediately, through surgery, someone with a fractured larynx can die, Pierce-Weeks said. Or an offender can sever a person’s carotid arteries, whose function is to deliver oxygenated blood to the brain. Without treatment, the arteries will slowly bleed and the victim can die from a sort of slow-motion stroke.

At the Training Institute on Strangulation Prevention, Strack and Gwinn’s faculty teach common symptoms of strangulation, which include voice changes, difficulty breathing, and behavioral changes like agitation. There are also symptoms that signify the victim was near death, such as loss of consciousness, urination, and defecation. Another big indicator of strangulation is the presence of petechiae, which are red or purple spots caused by burst blood vessels that form in a rash on or under the skin, often in the eyes or on the eyelids. Petechiae regularly shows up under the skin on dead victims during autopsies but less often on survivors’ skin.

In pregnant women, strangulation may also affect the fetus, leading to miscarriage or other deleterious effects.

“If the mother’s not getting air, the fetus is not getting air,” Pierce-Weeks said.

Desperate for Data

Although advocates say increased strangulation penalties are helpful to prosecuting sexual assault and domestic violence cases, what is also true is that strangulation itself is difficult to prove, because it frequently leaves no lasting visible marks on a person’s neck or face. The often-invisible nature of strangulation can also make it really difficult to prosecute, said Katherine Scafide, a forensic nurse examiner and assistant professor of nursing at the Georgetown University School of Nursing & Health Studies.

Armed with her paintball gun, Scafide is working on ways forensic examiners can better document strangulation injuries, because, she said, juries are usually motivated by clear images of obvious bruises, which are tough to come by.

Julie Besonen illustrated Scafide’s point in an article she wrote for the New York Times in 2013, in which she described serving as a juror in New York City’s first felony strangulation case that went to trial. Besonen wrote that she and many on the jury believed the defendant was guilty of strangulation, but in the absence of convincing images, they acquitted him on the felony strangulation charge. (They found him guilty of misdemeanor assault.)

Scafide, Daniel Sheridan, and other fellow researchers have been conducting research on using what’s known as alternative light sources to try to detect bruises undetectable to the naked eye. She and Sheridan presented some of this research—which involves shooting willing participants with paintball guns and then analyzing their bruises with alternate light sources—at last month’s National Conference on Heath and Domestic Violence. In one study, Scafide and fellow researchers showed that bruises are much harder for the naked eye to see on people with darker skin. The technology is fairly expensive—often in the $10,000 range, Sheridan said—and the research on its effectiveness is nascent, but many sexual assault examination centers around the country have begun using it.

Another issue that is difficult to prove in court is whether or not the victim lost consciousness during the strangulation. Proving loss of consciousness demonstrates the strangulation was near-fatal, but victims often do not remember that they passed out. Research has shown that people can drift out of consciousness without realizing it.

“You can pass out within seconds, and you can die in minutes,” Strack said, likening losing consciousness to a dimmer switch. “Everybody keeps saying, ‘Well, did you pass out?’ If the victim says, ‘No,’ or ‘I can’t remember,’ that’s kind of going to be a clue.”

It’s for these reasons that advocates are desperate for new data to be able to show juries and judges that lack of physical evidence in strangulation is common, and to standardize protocol among emergency medical professionals and law enforcement to ensure evidence is documented as early as possible.

New data is also needed, experts say, to better understand the varied health implications depending on different sexual assault scenarios (e.g., stranger rapes versus intimate partner rapes) and to better educate health-care providers who might not see these cases on a daily basis.

Medical forensic examiner Dr. William Green, who directs the California Clinical Forensic Medical Training Center in Sacramento, told Rewire that he is eager for more research data to help his staff and emergency doctors identify when a strangulation injury presents an immediate medical emergency. He said emergency physicians must be aware of the additional tests strangulation victims might require, such as magnetic resonance imaging (MRI), which can identify injuries and bleeding that are not apparent from an external physical exam.

“If I had that kind of rigorous data to start with, then I could lay it out for the nurses and cookbook it”—map out a procedure—”say, ‘OK, here’s what you do and depending on the data that you get from the physical exam, these are the scenarios, this is the action that you need to take for each one of these circumstances,” Green said. “I wish I had that data.”

In the meantime, Strack said her team are working another avenue to encourage prosecutors to approach sexual assault and domestic violence cases—particularly those where the victim was strangled—more aggressively. Her team is organizing a leadership workshop with state and federal prosecutors across the country, to take place in San Diego, in October. The goal of the workshop, Strack said, will be to discuss best practices for evidence-based prosecutions.

Ever since the U.S. Supreme Court ruled in 2004 that defendants have a right to cross-examine witnesses who have since become unavailable, Strack said prosecutors have been less forceful at prosecuting sexual assault and domestic violence cases where there is evidence but the victim has stopped cooperating, as was true in Richard Harth’s case. She said she’s hoping the fall workshop will help pave the way toward holding more offenders accountable.

“We think if you can hold people accountable sooner, before they kill them, then you can save lives,” Strack said.