State Choking Laws Signal New Attention to Domestic Violence

By: - May 28, 2010 12:00 am

Photo by Cheryl Senter, The Associated Press

With his wife, Claire, at his side, John Cantin testifies before the New Hampshire Senate Judiciary Committee on March 30 in favor of a bill making choking a felony. Cantin’s daughter, Melissa Cantin Charbonneau, was shot and killed by her husband last October, two days after he was released from police custody on a misdemeanor charge of choking her.

When Lara Saffo, a county prosecutor in western New Hampshire, tried to win a felony assault conviction against a man accused of domestic violence last year, she had a more difficult task on her hands than she recognized at the time.

Saffo had obtained evidence allegedly showing that the man had attacked his wife and put his hands around her neck in an attempt to choke her. Under the wording of New Hampshire’s assault law, however, she needed to convince a jury that he had displayed “extreme indifference to the value of human life.”

Using that standard, the jury came back divided — even though Saffo believes jurors had no doubt that the defendant was trying to choke his wife. The felony charge collapsed, even as three lesser misdemeanor charges stuck.

To Saffo, the case made clear that the New Hampshire legislature needed to fix what she considered a glaring problem in the law. Serious choking incidents could be penalized relatively lightly. “I don’t think juries should have to struggle with that,” says Saffo, who works in Grafton County, near the Vermont border. “Somebody’s hands are around somebody’s throat. (Juries) should know that that’s a felony.”

At the urging of Saffo and other prosecutors — as well as police and victims’ advocates — New Hampshire lawmakers this year passed legislation specifically addressing choking. The bill, which Governor John Lynch signed May 4, makes choking a felony punishable by three-and-a-half to seven years in prison. Previously, most defendants accused of choking their significant others had been punishable only under the “extreme indifference” standard that complicated Saffo’s case — or by a misdemeanor charge carrying significantly less jail time than a felony.

With the law, which takes effect January 1, New Hampshire joins a number of other states that recently have increased penalties for choking. Studies show that the act is a clear precursor to many domestic violence incidents that turn fatal. Yet in many states, choking still must be prosecuted under broader and often more difficult-to-prove assault laws.

The new laws are part of a wider effort in the states to reduce domestic violence not only by cracking down on perpetrators, as New Hampshire has done, but by helping victims and preventing future crimes.

Delaware Governor Jack Markell this month signed a bill similar to New Hampshire’s choking legislation, and Illinois, Nevada and Wyoming are among the states that have passed their own choking laws in recent years. In New York, where domestic violence has taken on a higher profile in the wake of a scandal in which an aide to Governor David Paterson was accused of choking his girlfriend, legislation creating a new felony for choking was introduced in March.

The spate of legislative activity — along with attempts in other states to prevent and punish domestic violence through a range of other policies — comes amid concerns that the sour economy and high levels of joblessness will result in a spike in domestic abuse generally. Studies by the National Institute of Justice have found a strong correlation between economic stress on families and domestic violence. Many women’s shelters around the country have reported a recent increase in victims seeking help.

The activity also follows several recent crimes that have brought the issue of domestic violence to the forefront of national attention. One of them — the murder of a 29-year-old Kentucky woman in 2009 — was allegedly carried out by Steve Nunn, the woman’s ex-fiancé and a former state legislator who is also the son of a former governor.

‘Excellent tool for prosecutors’

In New Hampshire, legislators were prodded into action by a crime that had a far worse outcome than the one Saffo prosecuted.

Last October, Melissa Cantin Charbonneau, a 29-year-old woman from Manchester, was shot to death by her husband, Jonathan Charbonneau. Just two days earlier, the man had been held by police after he was accused of assaulting and choking his wife. Jonathan Charbonneau posted a bail and returned to shoot his wife in the head and chest with a rifle.

The murder shocked the state, not least because Jonathan Charbonneau had not been detained on a far more serious felony charge for his earlier choking attack. “If strangulation was a felony during this situation,” the victim’s father, John Cantin, testified before the New Hampshire Senate Judiciary Committee in March, “I believe this shooting would never have had to happen.”

Lawmakers agreed. They easily passed the revision to the state’s criminal code and created what Amanda Grady, an advocate with the New Hampshire Coalition Against Domestic and Sexual Violence, calls “an excellent tool for prosecutors and law enforcement.” By ensuring that choking is a felony, Grady says, offenders with a history of domestic violence, like Charbonneau, will stand a greater chance of being kept away from the people they may be planning to harm again.

There is some concern that the new felony choking laws in New Hampshire and elsewhere could cast too wide a net — ensnaring teenagers who may not be acting with violent intent, for example. But Grady says it is up to local prosecutors to apply the laws responsibly, and in most of the states where choking has specifically been made a felony, legislative support has been overwhelming.

A range of approaches

Domestic violence is a problem that happens behind closed doors, so it can be tricky to prevent and to police it when it does occur. But state policymakers increasingly are recognizing that there may be steps they can take to address it.

Washington Governor Chris Gregoire this year signed a bill that seeks to improve the way authorities deal with domestic violence at all stages of the process — from the initial contact local police have at the crime scene to the criminal sentences that judges eventually hand down.

Under the legislation, local police are urged to more closely investigate the criminal histories of all parties involved in domestic violence cases. They are “to discern whether there may have been a pattern” and more accurately assess what may have happened, says Representative Roger Goodman, the bill’s sponsor and vice chairman of the House Judiciary Committee. Sometimes someone who may look like the aggressor, Goodman says, may have been an abuse victim for years.

The law also tells judges to consider new factors when they hand down sentences. If an offender previously had 10 misdemeanors, for example, each misdemeanor will be registered as an extra “chalk mark” in favor of tougher punishment. Another provision seeks to improve coordination among local police departments, so that domestic violence victims who may flee to a neighboring city or town are not turned aside because of jurisdictional technicalities.

Meanwhile, in Kentucky, where many lawmakers personally know Nunn, the former state legislator accused of murdering his ex-fiancée, the General Assembly in April approved “Amanda’s Law” in honor of the victim, Amanda Ross. The law gives judges the power to require certain offenders who violate a domestic violence order to wear a GPS tracking device. Before she was killed, Ross had cited domestic abuse in seeking court protection from Nunn, whose case has not yet gone to trial.

Connecticut’s General Assembly also is debating a bill that would set up a pilot program to track domestic offenders electronically.

In Massachusetts, lawmakers are considering a bill that would give domestic violence victims the right to break their leases without penalty if it means being able to get out of a dangerous living situation. Another bill would let victims of domestic violence take up to 15 days off work, either paid or unpaid, if they are trying to escape a potentially threatening situation.

Looking ahead, officials in several states are training their attention on the often unseen victims of domestic violence — the children caught in the middle. That is one of the emerging areas of focus for Delaware’s Domestic Violence Coordinating Council, a state panel that makes policy recommendations to the Legislature. As Carl Danberg, the state corrections commissioner and vice chair of the panel, says, “There is still (more) room for the Legislature to address issues of domestic violence.”

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