Strangulation in Domestic Violence Cases to Become an Automatic Felony in Colorado
Accusations of strangulation have become more common in domestic abuse cases in the United States over the last decade.
The law distinguishes two types of strangulation: manual and ligature.
- Manual is the use of one or two hands, with forearms, or kneeling on the person’s neck.
- Ligature is used with a band that is tightened by force, such as belts, cords, ropes, clothing, or bedding. Both charges can carry severe consequences including incarceration and heavy fines.
Domestic assault by strangulation can involve spouses (current or former), parents, children, other blood relatives, roommates, or individuals involved in a dating relationship.
Strangulation in Domestic Cases Could Become a Felony Charge
As of today, there is a bill in the state of Colorado to consider upgrading strangulation to a felony conviction even without the appearance of bodily injury in a domestic case. The act of strangulation will be a first or second-degree felony assault crime. The details are outlined in Colorado House Bill 16-1080.
The new law is being considered based on the idea that choking is a precursor to serious bodily injury or death. However, if choking alone doesn’t result in serious injury in a domestic violence case, most district attorneys in Colorado will not file felony charges. If the district attorneys want to file charges, many counties in the state already consider choking and strangulation cases as second-degree assault by alleging that the perpetrator’s hands are considered deadly weapons. Therefore, they will charge the case as a violent crime under existing Colorado law.
Problems with Making Strangulation a Felony Charge
While the act of domestic violence is not condoned, the new law could make the issue of false domestic violence allegations even worse. If the state of Colorado increases the penalty to a mandatory prison sentence many falsely accused people (mostly men) will be arrested, prosecuted and convicted.
The issue in strangulation cases is the level of proof needed to establish the crime and lower the threshold of what is construed as “real” strangulation. By lowering the threshold of proof, this law leads to innocent people being wrongly convicted as well as serving a mandatory prison sentence for strangulation.
This new law may also require the use of questionable expert testimony that is used at trial in the absence of any missing physical evidence in the case. In most cases, any marks or scratches on the victim’s neck are the main sources of evidence. If they do not exist, the proof of severity in strangulation cases leaves the problem of the classic “he said – she said” case. Alleged victims can claim that they have shortness of breath, lightheaded, or other symptoms of strangulation that can be both subjective under cross-examination in court.
Strangulation laws also do not make exceptions in matters of self-defense. If you are attacked and restrained by the neck to protect yourself, you may leave bruises and marks on the other person. Even if they leave bruises on you, you could appear to be the guilty one. It could be assumed that you were strangling them and they left defense marks on you by protecting themselves.
Defending Against Strangulation Assault Charges
The most common defenses to assault charges by strangulation include:
- The perpetrator acted in self-defense as against an attack by the alleged victim
- The incident that occurred was an unintentional accident, or
- The person accusing the defendant made up false allegations of abuse.
- The case cannot be proven beyond a reasonable doubt.
Sometimes law enforcement does not conduct a thorough investigation beyond the initial contact with the alleged victim. There may not be an attempt to determine if the person that is accused of domestic violence was defending themselves or if both parties were both engaged in acts of violence.
It’s also possible that law enforcement may not be able to assess the psychological state of mind of the accuser, including if they are mentally ill, under the influence of drugs, or intoxicated.
Furthermore, the alleged victim story should be consistent. The story may change during the criminal case or the victim may even recant their story. A thorough investigation could reveal a motive behind false allegations if the alleged victim claims abuse out of revenge. The false charges could be related to a family law matter, such as child custody dispute.
What to Do if You’ve Been Accused of in a Strangulation Domestic Assault Case
If you are charged with a felony, there are several consequences that can be devastating. A felony conviction could cost you your job or your ability to find future jobs as well as housing. You could lose your right to possess firearms and lose the right to vote. If you are in the military, this could jeopardize your career.
When a charge of domestic violence is applied to a crime, a certain set of “victim’s rights” modifications automatically apply. These modifications work to your disadvantage, even if you are wrongfully accused. These modifications include:
- Mandatory arrest: Once law enforcement has “probable cause” to believe that you committed an act of domestic violence, you must be arrested “without undue delay” under Colorado law, even if they do not believe you are guilty.
- Mandatory restraining order: A mandatory restraining order is issued after your arrest which prevents you from any contact with the complainant or through third parties until lifted. If you violate the order, you will be arrested for a second criminal offense. You can violate a restraining order even if you are acquitted of the domestic violence charge for which you were originally arrested.
- Prohibition against having the charges dropped: In most criminal cases, the prosecutor can drop the charges if they do not believe you are guilty. However, in a domestic violence case, the prosecutor must proceed with the case against you unless it would be impossible to win at trial.
I Will Fight For You
If you are facing a strangulation assault charge, you need an attorney who is experienced in defending against serious domestic violence charges. I am a former prosecutor who understands how the system works and the tactics the prosecution will use against you. I will use my skill and experience to aggressively defend you against the charges you are facing.
Together, we can work toward a solution that preserves your freedom and your livelihood. I will personally handle your case, and you can speak to me directly with any questions or concerns you have about your case. Contact me at (719) 577-9700 or fill out a contact form to get started on your case today.