Saturday, Jul. 31, 2010
By Elizabeth Zavala ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

Advocates for victims of family violence are troubled that some district attorneys across the state are prosecuting relatively few cases of strangulation and suffocation of intimate partners, despite a new law designed to automatically put the attackers in prison.

In Tarrant County, only 194 strangulation cases have been submitted to the district attorney's office since Sept. 1; so far, 66 are being prosecuted under the new law. Dallas County prosecutors have filed 518 felony strangulation cases in that same period. Harris County prosecutors have filed 697 strangulation cases from Jan. 1 to June 30.

At issue in Tarrant may be whether a medical professional's testimony is required to prosecute the cases. Tarrant prosecutors also say police officers need to be trained to collect evidence that is compelling enough to win convictions from juries.

"They are going to want something concrete ... when asking them to send someone to the penitentiary for 10 years," said Sean Colston, assistant criminal district attorney and chief of the family violence unit for the Tarrant County district attorney's office.

But victims' advocates, while acknowledging difficulties with identifying strangulation and suffocation, also say that there will need to be a commitment by prosecutors to take on these kinds of cases.

"Domestic violence cases are hard, time-consuming and difficult to prosecute with the myriad of layers," said Mary Lee Hafley, president of SafeHaven, Tarrant County's largest family violence shelter. "And it really means that prosecutors have to be committed and really take a strong stand and make domestic violence a priority."

She said she was concerned, though, if district attorneys face difficulties prosecuting the law because of the way it was written. "I remember specifically that [legislators] tried to word it so it wouldn't require a medical professional's testimony, but evidently the district attorney thinks that is necessary for convictions," she said.

No training provisions

According to the National Coalition Against Domestic Violence, strangulation is one of the top five risk factors in homicides related to domestic violence. Each year in the U.S., 10 percent of violent deaths are attributed to strangulation, and a domestic-violence victim who has been subjected to that type of attack is nine times more likely to be killed than those who haven't faced it, according to the council.

The Texas law, authored by state Rep. Pete Gallego, D-Alpine, and sponsored by state Sen. Jane Nelson, R-Lewisville, added intimate-partner strangulation and suffocation as specific forms of assault.

Texas legislators were specific in the wording of the law, defining the offense as causing pain by "intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth."

Under House Bill 2066, which became effective 10 months ago, the first offense in a family violence case is a third-degree felony, punishable by two to 10 years in prison.

A second offense for a family or dating violence offense may be charged as a second-degree felony, punishable by two to 20 years in prison.

Previously, strangulation was charged as a Class A misdemeanor, punishable by a $4,000 fine and/or up to one year in county jail.

Nelson, whose District 12 covers parts of Denton and Tarrant counties, said the staggering statistics regarding strangulation prompted her to work with Gallego and statewide advocates to get the law passed.

"What this law does is give prosecutors more tools to fight family violence and hold abusers to a higher level of accountability," she said.

Gael Strack, CEO of the Family Justice Center Alliance in San Diego, commends Texas' legislators for good intentions. So far, said Strack, a former prosecutor who has been studying strangulation cases about 15 years, 29 states have passed felony strangulation laws of some kind.

But she also said the Texas effort lacks provisions for training by law enforcement and prosecutors to make sure that the cases can withstand tough legal challenges.

"At the heart of it, they [legislators] understand that strangulation and suffocation are very serious and very lethal," Strack said. "But it's an area where police and prosecutors have not had adequate training in identifying it."

Impact so far

Many of the strangulation cases that Fort Worth police have submitted to the Tarrant County district attorney's office since the law went into effect have been filed or indicted as misdemeanors -- 72 of the 194.

Of the remaining cases, 32 indictments were declined; 16 of the cases have not yet gone before the grand jury; and eight were indicted as other felonies such as assault, Colston said, with the other 66 indicted as strangulation cases, he said.

Arlington police have submitted 53 strangulation cases to the DA's office since Sept. 1, Colston said, and of those cases, 16 so far have been indicted under the strangulation law. Eleven cases have yet to go before a grand jury; 18 were indicted as misdemeanors; six indictments were declined; and two were indicted as other felonies, such as assault with a prior conviction.

Proportionate to population, Dallas police have submitted many more cases than Fort Worth police have, and more are being prosecuted as felonies under the new law or existing laws that carry higher penalties.

Bobbie Villareal, chief of the family violence division at the Dallas County district attorney's office, said her department has accepted and filed 518 cases as felonies under the new statute since Sept. 1, a number she said was higher than their original expectations. But they have not yet had a jury trial using the new statute.

"We have been developing a prosecution strategy to be used in upcoming cases that are set for trial," Villareal said via e-mail.

In the first four months the law went into effect, Harris County prosecutors filed 237 cases, and then the 697 so far this year. "It's really taken off," said Jennifer Varela, victim assistance coordinator for the Harris County district attorney's office.

Information on the number of indictments returned so far was not available.

Varela said the department began education, training and risk assessments long before the new law was enacted.

She said medical evidence is not required because the law is written broadly enough, but as part of the training, police officers are encouraged to ask victims specific questions.

"We tell the officers, 'You're my expert. You're the person to go in and tell the juries how dangerous these cases are,'" said Jane Waters, chief prosecutor in the family violence services unit in the Harris County district attorney's office. "That seems to work pretty well. We're getting convictions, and we're getting our point across and talking to people about how to be safe."

Tarrant County's Colston said because the law is so new, it may be too early to measure its success. He said part of the process will be to allow offenders to go through the system and hear from victims and attorneys to see what effect the law is having.

"I think common sense will say the fact that you have a mechanism like this, it is going to increase victims' safety, and the basic effect is that it will make offenders think before they strangle their loved ones," he said.

Difficulties

Identifying strangulation or suffocation can be difficult because many times there can be no signs or symptoms immediately. Research has shown that someone can be strangled to death in five minutes or less without leaving a mark, Strack said, adding that sometimes it can take up to a day for marks to appear, and someone can die within 36 hours from complications from the oxygen deprivation.

Because of the difficulties, advocates say it is important for law enforcers to look for signs and take photographs if necessary, even days after the assault occurred.

"Because there is a lack of oxygen to the brain, sometimes there is amnesia," Strack said. Victims "can be strangled to the point of unconsciousness. They will urinate and defecate, which is embarrassing, and that is the last thing they would tell an officer. That is evidence that someone came very close to death."

Even the terminology used on police reports is crucial, advocates say. For example, choking, often cited on arrest reports, has a much different connotation that strangulation or suffocation. And that can be the difference between a misdemeanor and a felony.

Aaron Setliff, director of policy for the Texas Council on Family Violence, helped formulate the law. The former El Paso prosecutor understands the constraints law enforcement may be under and said advocates will continue to work on ways to help prosecutors build their cases.

"Prosecutors are figuring out what is entailed in getting a jury to go with the state," Setliff said.

"There are needs for specialization, making sure that law enforcement asks the right questions, which is important to build the evidence."

Because of the difficulties in identifying strangulation cases, Fort Worth police began training their officers last September, said Sgt. Deven Pitts, who is over the department's family violence and missing persons unit.

"The issue is the difference between choking and the way the law reads," Pitts said. "Simply saying you were choked doesn't enhance the penalty of the law. Officers in the field need to investigate more with victims that their breathing was disrupted."

The Police Department and the district attorney's office have a forum set up for next month to make sure both departments are on the same page regarding strangulation cases, Pitts said.

"People need to be educated about how serious it [strangulation and suffocation] can be," he said.

Colston said he agrees with the advocates about implementing training for law enforcement.

He intends to work with the Tarrant County medical examiner to come up with specific guidelines about what law enforcement needs to look for and how reports need to be written.

He also wants to look at other approaches to help prosecute the cases.

"In these cases, even in some of the misdemeanors, if we don't have some kind of visible evidence, juries are reluctant to convict," Colston said. "You have to show them [juries] that you've gone through the steps necessary to prove your case beyond a reasonable doubt."