Domestic Battery by Strangulation

Defense must be robust in any case where Florida domestic violence battery by strangulation is alleged. The fact that state lawmakers sought not to carve out a unique charge specific to this act in the context of domestic violence speaks to the fact that it is taken very seriously.

In recent years, pressure on prosecutors to take a heavy hand with these cases has been increased by the release of numerous studies (such as this one published in the Journal of Emergency Medicine) concluding that non-fatal strangulation by an intimate partner is a top risk factor for homicide against women. This is a big reason why professionals in healthcare, law enforcement, and social services will press the issue if there’s even the slightest whisper of or alluding to it during an investigation.

The state does not need to prove the alleged victim was seriously hurt to prevail in a case where the accused is facing up to five years in prison (assuming that’s the only charge and there are no other aggravating circumstances). Technically speaking, the cooperation of the alleged victim isn’t required either. Given the enormity of impact a conviction for domestic violence battery by strangulation can have on the rest of a person’s life, it is essential the accused seek legal representation from a Fort Lauderdale defense firm with extensive experience - and a track record of success - in domestic violence cases.

Domestic violence battery by strangulation is a type of felony battery, as outlined in F.S. 784.01. It occurs when a family member, household member, or someone in a dating relationship intentionally, knowingly, and against the will of another impedes his/her normal breathing or circulation of the blood by applying pressure on the neck or throat, thereby creating a risk or cause of great bodily harm.

Accusations often arise in the context of brief bursts of emotionally-charged encounters. Expert witness testimony in prior cases has revealed a person who is being strangled may begin to lose consciousness within 15-30 seconds. Serious injuries can occur very quickly beyond that point. The neck is very vulnerable, and it doesn’t take a lot of pressure to block off a person’s airway. If the strangulation lasts 3-4 minutes, death is likely to occur.

Florida courts have held that if a person picks someone else up by their neck - even briefly - this can be considered strangulation.

Some of the questions likely to be asked of the alleged victim in court:

• Did the accused use one hand or two?
• Was something other than hands used?
• From which direction was the attack (front, behind, both)?
• How long did the incident last? (Trauma and high intensity emotions can blur a person’s ability to accurately recall details like time.)
• Did you have trouble swallowing or breathing?
• Was your throat sore after the incident?
• Was your voice impacted after the incident (short-term or long-term)?
• How did you feel as pressure was being applied?
• Did you lose consciousness?

There is ample Florida case law guiding judges to take cases of domestic battery by strangulation more seriously than the “typical” domestic violence case (to the extent there is such a thing) and impose much more substantial penalties.

For example, in the 2007 Florida Supreme Court case of Johnson v. State, the court held that the strangulation of a conscious victim transforms a murder case into a death penalty offense, due to the fact that it is per se (in or of itself) “heinous, atrocious, and cruel.” (It’s worth noting that the defendant’s death sentence in that case was later overturned following a state law revision invalidating death sentences issued by a less-than-unanimous jury. His death sentence had been recommended 11-1. Had it been unanimous, he’d still be facing death. Instead, he was resentenced to life in prison.)

Then in the 2019 case of Lopez-Macaya v. State, Florida’s 3rd District Court of Appeal held that in Florida domestic violence battery strangulation cases, prosecutors do not need to prove the victim suffered great bodily harm. They need only establish that the defendant’s alleged actions created the risk of great bodily harm. This is an important point for prosecutors because, according to some sources of medical research, only about 50 percent of strangulation victims of visible injuries. And only about 15 percent have injuries that can be photographed by the time police respond. This fact can work in the defense team’s favor, but defendants should never assume that just because injuries aren’t visible or the action didn’t cause lasting harm that they will be off-the-hook. Their best bet is to work with a domestic violence defense lawyer who can either have certain evidence suppressed and/or successfully challenge a prosecutor’s weak he-said-she-said evidence.

As a form of asphyxia, strangulation deprives a person’s brain of oxygen. For every second that passes, millions of brain cells can die. Further, internal injuries such as carotid artery damage leading to a stroke may not manifest themselves for hours, days, or even weeks after the assault. Although in that scenario, prosecutors would bear the burden of proving the causal relationship between a stroke weeks after the fact - and it may not be easy to do so. But it’s not impossible, and defendants need to know that’s a real possibility that could impact the severity of their penalties if convicted.

Although every case is different, our domestic violence defense lawyers have learned there are a few things we readily anticipate in defending these cases. Those include:

• Recantation. It is not uncommon in domestic violence cases for victims to recant. It could be due to witness intimidation (which we strongly warn any client against, given the severity of penalties for doing so). However, it’s also often because after a few days, when tensions have eased, nerves have calmed, and everyone’s thinking more clearly, the accuser realizes the severity of their accusations - and how disruptive the pending matter is going to be on their lives. Defendants need to understand that an accuser recanting their allegations won’t automatically result in the case being dismissed. In fact, judges have given more leeway to allow admission of hearsay evidence to counter this phenomenon.
• Expert witnesses. A criminal domestic violence strangulation charge is heavily dependent upon proving a very specific type attack on a very specific body part having a very specific effect. Particularly where there are no third-party eyewitnesses or obvious physical injuries, expert witnesses may be called in to fill in the blanks. They’ll likely be asked to study the evidence and explain things like lack of physical markings, how certain injuries may have a delayed onset (or not), and the potential for long-term physical and psychological impacts.
• Restitution. Lastly, alleged victims in domestic violence strangulation cases may be entitled to monetary restitution from the accused. Pursuant to F.S. 741.30(6)(a)(7), defendants may be ordered to pay economic damages for losses related to the incident - potentially in both criminal and civil cases. (In civil law, strangulation would be considered an “intentional tort.” Civil cases are entirely separate from criminal matters. Instead of a prosecutor pursuing the case, it’s the victim - who is the plaintiff - and they can seek damages for medical bills, lost wages, pain and suffering, etc.)

If you have been charged with Domestic Battery by Strangulation, call the South Florida criminal defense lawyers at The Ansara Law Firm at (954) 761-4011 for quality legal representation.