BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 870 Hearing Date: April 5, 2016
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|Author: |Roth |
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|Version: |February 22, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Felony Domestic Violence: Strangulation
HISTORY
Source: Riverside District Attorney
Prior Legislation:SB 430 (Kehoe) - Ch. 129, Statutes of 2011
Support: California District Attorneys Association; California
Police Chiefs Association; Peace Officers Research
Association of California; one individual
Opposition:California Public Defenders Association
PURPOSE
The purpose of this bill is to reframe existing strangulation
provisions in the felony domestic violence statute as a
stand-alone subdivision, with the same penalties as those in
current law.
Current law provides any person who willfully inflicts upon a
person who is his or her spouse, former spouse, cohabitant,
former cohabitant, fiancé or fiancée, or someone with whom the
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offender has, or previously had, an engagement or dating
relationship, as defined, or the mother or father of his or her
child, corporal injury resulting in a traumatic condition, is
guilty of a felony, and upon conviction thereof shall be
punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not more than one year, or
by a fine of up to $6,000 or by both that fine and imprisonment.
(Penal Code § 273.5(a).)
Current law provides that as used in this section, "traumatic
condition" means a condition of the body, such as a wound, or
external or internal injury, including, but not limited to,
injury as a result of strangulation or suffocation, whether of
a minor or serious nature, caused by a physical force. For
purposes of this section, "strangulation" and "suffocation"
include impeding the normal breathing or circulation of the
blood of a person by applying pressure on the throat or neck.
(Penal Code § 273.5(d).)
This bill would delete the references to strangulation and
suffocation in the above definition of "traumatic condition."
This bill instead would provide that any person who willfully
inflicts corporal injury resulting in a traumatic condition upon
a victim described above, "where the corporal injury resulting
in a traumatic condition is caused in whole or in part by
strangulation or suffocation, is guilty of a felony, and upon
conviction thereof shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail
for not more than one year," or by a fine of up to $6,000, or by
both that fine and imprisonment.
This bill would provide that "for purposes of this paragraph,
'strangulation' and 'suffocation' include impeding the normal
breathing or circulation of the blood of a person by applying
pressure on the throat or neck."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
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to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
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Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
This bill would amend the penal code to identify where
the defendant inflicts the traumatic condition, in
whole or in part, by means of strangulation. Current
legislation does not separate an act of domestic
violence involving strangulation from an act of
domestic violence which does not.
Strangulation accounts for 10% of all
violent deaths annually in the United States.
At least 25% of all domestic violence
cases include strangulation.
50% of non-fatal strangulation cases
leave no visible external injury. 35% result in
injuries too difficult to document by photograph.
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Only 3% of these victims seek medical attention.
Victims of strangulation often don't
understand the dangerousness of the act and are
therefore reluctant to seek medical attention.
As little as 8 pounds of pressure (the
same force necessary to pull the trigger on a
handgun) can cause loss of consciousness,
permanent brain damage, or death.
In a 2006 study, 34% of abused pregnant
women reported being "choked."
In a study conducted in San Diego,
California, researchers found that children were
present in 50% of the strangulation cases.
In a 2011 study of men enrolled in
batterer intervention program, 27% admitted they
had strangled a partner during their lifetime.
35% of those indicated it occurred more than
once. 83% of those incidents included other
abusive behavior.
Studies link a history of strangulation
to those individuals committing homicidal
violence against law enforcement.
(This measure would not create any new offense and
would not result in any increase in state prison and
population)
1.What This Bill Would Do
In 2011, SB 430 (Kehoe) was enacted into law to specify that,
for purposes of felony domestic violence, "traumatic condition"
included an injury as a result of strangulation or suffocation,
and that in this context "strangulation" and "suffocation"
included impeding the normal breathing or circulation of the
blood of a person by applying pressure on the throat or neck.
This bill would amend these provisions by reframing these
strangulation references as a stand-alone subdivision of the
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felony domestic violence statute. As explained above, a
"traumatic condition," which is a required element for felony
domestic violence, already expressly includes strangulation.
This bill instead creates a subdivision in the felony domestic
violence statute expressly for instances where the injury
resulting in a traumatic condition is caused in whole or in part
by strangulation or suffocation. The penalty would be the same
as current law.
The Riverside District Attorney, which is the sponsor of this
bill, submits in part:
SB 870 allows us to readily identify offenders who
strangle their victims. Without creating a new
offenses or increasing the state prison population, it
separates out this type of offender from other
domestic violence offenders. This identification
becomes critical throughout the criminal justice
system. Law enforcement can use this information in
order to assess the potential lethality of the
offender. Prosecutors and the courts can use this
information to craft appropriate sentences. Probation
can use this identification to craft better programs
for abusers. Victims benefit from the recognition that
non-fatal strangulation is the most severe form of
domestic violence short of homicide.
3.Background: Strangulation and Domestic Violence
As the author's statement indicates, research demonstrates the
importance of understanding strangulation in the context of
domestic violence. As one commentator explained in a 2014
Australian law review article:
Both legal and medical studies have begun to emphasize
the importance of strangulation in the context of
responding to domestic violence. . . . Strangulation
is now established as a predictive risk factor for
future severe domestic violence and for homicide, and
it is commonly alleged by women who have experienced
domestic violence. . . . (S)trangulation is a
relatively common cause of domestic violence-related
homicide. . . .
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Strangulation is a significant concern for at least
two reasons. First, it frequently affects the
long-term health of the victim. . . .
Second, the risk to the victim of more serious injury
or death is increased dramatically once the victim has
experienced strangulation at the hands of their
intimate partner or former intimate partner.
Significant research about the prevalence of, and
risks associated with, strangulation has taken place
in the United States. In 2000, Block et al published
the results of The Chicago Women's Health Risk Study.
The Chicago Study conducted domestic violence
screening for 2616 women who attended a hospital or
health service for treatment in the Chicago area in
1995-96. The study found that having been choked in a
previous domestic violence incident was a risk factor
for later being seriously injured or killed. Strack
and Gwinn state that there are a number of findings
about non-fatal strangulation incidents that are now
common knowledge. These include that there are often
no visible injuries as a result of strangulation and
yet there are often internal injuries; that the
strangulation can have long-term physical and
psychological impacts; that strangulation is a
gendered crime (perpetrators are almost always men and
victims are almost always women); and that victims of
strangulation are much more likely eventually to
become homicide victims.
In 2001, Stack, McClane and Hawley 22 published a
pivotal study in the United States, . . . . Their
study reviewed 300 cases of domestic violence
involving non-fatal strangulation. The cases had all
been submitted to the San Diego Attorney's office for
prosecution. Almost all of the victims were women,
and almost all of the perpetrators were their victim's
current or former male intimate partner. In most
cases, the perpetrator had used his hands to strangle
the victim. In most cases (89 per cent), there was a
prior history of domestic violence. . . .
The links between the risk of further serious injury
and death subsequent to an attempted strangulation has
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been of particular interest to a number of
researchers. In one study, researchers concluded that
the odds of becoming a homicide victim as a result of
further domestic violence were increased by 800
percent for women who had previously experienced
strangulation by their partners. . . . <1>
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<1> Douglas and Fitgerald, Strangulation, Domestic Violence
and the Legal Response (2014) 36 Sydney L. Rev. 231.