Domestic violence cases pose a unique challenge for prosecutors because domestic violence incidents are at once difficult to prosecute, yet extremely common, occurring, on average, about once every eight seconds throughout New Jersey, according to the statistics compiled by the New Jersey Attorney General’s Office. Domestic violence is difficult to prosecute because incidents usually happen in the privacy of the home and are only witnessed by only two people: the defendant and the alleged victim. In many cases, victims may be ambivalent about assisting the prosecution because of the impact that a criminal conviction might have on the victim or her family. In others, the victim may be confused by lingering romantic feelings for the defendant or, more troublingly, might be unable to escape the overwhelming influence of a controlling perpetrator. On the other side of the spectrum, some allegations of domestic violence assault are embellished or even completely manufactured by an aggrieved romantic partner. Against this complex backdrop, domestic violence prosecutors must contend with the grim reality that every year in New Jersey, ever more victims of domestic violence will be killed by a perpetrator who had already been prosecuted for domestic abuse. Though these fatalities can seem preventable in hindsight, identifying the most vulnerable victims in a sea of domestic violence calls is no easy task.
Over the past decade, criminal justice and public health researchers have come to identify a single risk factors as perhaps the most powerful tool for identifying perpetrators who pose the greatest risk of a future domestic violence homicide: strangulation. A 2008 study found victims of strangulation to seven times more likely to die in a domestic violence incident as compared to victims who had never been strangled (Glass et al. 2008). As noted by the New Jersey Domestic Violence Fatality Near Fatality Review Board in its 2018 report, Fatality by Strangulation, “despite strangulation being a strong predictor of homicide, it is very difficult to identify as there are typically no physical signs, such as bruises, because most injuries occur internally.” According to the Board, strangulation is not only one of the strongest predictors of future serious violence, it is extremely dangerous in and of itself, and a strangled victim may have narrowly escaped a brush with death, despite showing few outward signs of an assault. In 2019 in New Jersey, seven percent of domestic violence homicides were accomplished through strangulation. (2021 DV Fatality Review Board Annual Report).
New Jersey did not have a statute specifically targeting and criminalizing strangulation until 2017, when it became the 37th state to criminalize assault by strangulation. Under this new subsection of the aggravated assault statute, a person who knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person by applying pressure on the throat or neck or blocking the nose or mouth in an act of domestic violence is guilty of a third-degree aggravated assault, punishable by up to five (5) years imprisonment, a $15,000 fine, or both, whether or not the victim lost consciousness, N.J.S.A. 2C:12-1b(13). Prior to passage of the legislation, aggravated assaults were graded in severity by the extent of injury, so, unless a victim lost consciousness, a strangulation might be prosecuted as a simple assault in municipal court.
In 2021, Governor Phil Murphy increased the criminal penalties for strangulation as more studies highlighted the dangers of strangulation. The 2021 legislation elevated the criminal penalties for strangulation to a crime of the second degree, punishable by up to ten years imprisonment, a fine of up to $150,000, or both, and a presumption of imprisonment. At the time, Governor Murphy stated that “[r]esearch has shown that strangulation is often one of the strongest red flags for predicting future homicides of victims of domestic violence. This legislation recognizes the seriousness of strangulation assault and gives us the tools necessary to hold people accountable for their actions.”
Stahl Gasiorowski Criminal Defense Attorneys has represented a number of individuals investigated and charged with domestic violence charges. To contact Mr. Olesnycky, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Olesnycky at ao@sgdefenselaw.com.
As Seen In
Insider, an independent online newspaper specializing in investigative journalism, interviewed Andrew Olesnycky regarding NJ’s prosecutions of strangulation charges:“Prosecutors take strangulation seriously in New Jersey, said Andrew Olesnycky, a defense lawyer who previously supervised domestic violence cases as a Union County prosecutor. He noted that in 2021, the state made strangulation punishable by up to 10 years in prison.”
