The charge of domestic violence often conjures up images of bruises, black eyes, and broken bones. But one of the most serious Florida domestic violence offenses often leaves no marks at all.
If you are arrested for domestic violence by strangulation in Fort Lauderdale, it’s important to understand that this charge is much more serious than a typical domestic violence battery case. Florida lawmakers made the point of carving out an entirely separate statute for the offense of non-fatal choking or strangulation. Rather than being a misdemeanor punishable by up to 12 months in county jail, (as most domestic violence charges are), F.S. 784.041 makes domestic violence strangulation a third-degree felony, which is punishable by a maximum of 5 years in state prison.
It does not require proof of great bodily harm, permanent disability, or permanent disfigurement (which IS required for other domestic violence battery incidents to be charged as a felony). In 2019, a Florida district appellate court ruled in Lopez-Macaya v. State that there’s no need to prove the victim suffered actual great bodily harm – only that the defendant’s alleged actions created the risk of great bodily harm.
Despite the fact that only 50 percent of alleged strangulation victims have visible injuries and only 15 percent have injuries that can be photographed at the time police respond, officers are often quick to make an arrest on this charge if the accuser makes the allegation. That can mean you’re facing a felony despite very little evidence, but you still need to take the possibility of conviction very seriously because prosecutors aren’t likely to tread lightly. That’s because this act is singled out as a major red flag that domestic abuse has escalated to the point of a potential fatality.
A person being strangled can lose consciousness within seconds. Permanent brain damage can happen in as little as 30 seconds. Brain death occurs within 3 to 5 minutes. If someone survives strangulation, research has shown the odds of it happening again are 10 times greater. Another study found that a person who survives a domestic violence strangulation is 750% more likely to be killed by their partner within the next 12 months.
The Florida Supreme Court in 2007 ruled in Johnson v. State that strangulation of a conscious victim will transform a murder into a death penalty case because “it is per se [as a matter of law] heinous, atrocious, and cruel.”
What Exactly Is Strangulation?
This might seem like a straightforward question, but the technical definition may have an impact on your pending Fort Lauderdale domestic violence case.
The act chargeable under this statute involves acting with knowing intention – and against the will of the other person – to impede the normal breathing or circulation of blood so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the pother person by blocking their nose or mouth.
Although some refer to strangulation as “choking,” there is some difference. Choking is the result of a foreign body airway obstruction. You can “choke” on a piece of food. Strangulation is airway obstruction by external force (most often in these cases, with hands).
Domestic Violence Strangulation Defenses
If the strangulation was carried out in accordance with some type of consensual sexual activity, it would not meet the “against the will of the other person” requirement of the Florida criminal statute. In one recent study published in the peer-reviewed Archives of Sexual Behavior, 1 in 3 college students had engaged in the activity, with 90 percent of those incidents being consensual.
Absent this defense, it should be noted that not every act that involves blocking breathing or application of pressure would be a violation of the strangulation statute. As noted in the U.S. 11th Circuit Court of Appeals ruling in U.S. v. Dixon, the state’s domestic battery by strangulation statute classifies the act as a “crime of violence” for sentencing purposes, but it must involve the knowing/intentional act of impeding breathing/circulation in a way that causes or risks great bodily harm. If someone, for instance, briefly put a pillow on the face of someone who was sleeping, held them underwater, or sat on their chest, it might not qualify under the statute because it was too insignificant to actually impair someone’s ability to breathe.
As Fort Lauderdale domestic violence defense lawyers, we would be looking carefully at the evidence. As previously noted, around half of these incidents don’t result in any physical proof of the act. That may make it solely a matter of one person’s word versus another. Particularly if the defendant has no history of domestic violence, we might challenge the credibility of the accuser or other evidence holes in the state’s case.
Because this is a serious crime that carries heavy penalties, immigration consequences, impacts to your freedom and civil rights, it’s not a charge you can take lightly. It’s in your best interests to hire a Fort Lauderdale defense attorney with extensive experience in fighting to protect the rights and reputations of those accused of domestic violence.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
YANDRI LOPEZ-MACAYA vs THE STATE OF FLORIDA, Aug. 19, 2019, Florida Third District Court of Appeal
More Blog Entries:
Will I Still be Prosecuted for Florida Domestic Violence if the Alleged Victim Won’t Cooperate? May 30, 2023, Fort Lauderdale Defense Lawyer Blog