Strangulation is a violent and dangerous enough act to be prosecuted as a felony, according to Montana’s prosecutors.
Sen. Margie MacDonald, D-Billings, is sponsoring SB 153, which would make strangulation of a partner or family member a felony offense. MacDonald testified for the bill before the Senate Judiciary Committee on Thursday.
If the bill is passed, Montana would join 44 other states that have created laws against strangulation in the home, MacDonald said. The Violence Against Women Act also made strangulation a felony under federal law.
An amendment is already being proposed to get rid of the two-year mandatory minimum sentence attached to the bill. Sen. Nels Swandal, R-Wilsall, said he proposed the amendment out of a general dislike of mandatory minimums.
The amendment would allow for the mandatory minimum in the event of a second strangulation offense, Swandal said.
The bill's fiscal note states the law would have an unknown cost impact to the Montana Department of Corrections and the Office of the State Public Defender, due to the creation of a new offense and the addition of a mandatory minimum sentence.
MacDonald brought the bill forward after being approached by the Montana Attorney General's Office and the Yellowstone County Attorney's Office.
After the 2007 Legislature changed language in the aggravated assault statute to allow for the prosecution of strangulation, the Yellowstone County Attorney's office prosecuted more than six times as many aggravated assault cases, with 56 percent of those cases involving strangulation.
Since 2013, the office has charged 161 aggravated assault cases, with about 66 percent related to a strangulation offense, according to Yellowstone Chief Deputy County Attorney Juli Pierce.
Assistant Attorney General Ole Olson also helped write the bill and represented the attorney general's office at the hearing.
Charging under the aggravated assault statute creates many barriers for prosecutors, Olson said. Rather than figuring out if strangulation occurred, prosecutors need to figure out if the victim felt like they were either going to be seriously injured or killed.
Victims are not always aware of the dangers of strangulation, Olson said. Even when they do, it is hard to prove serious injury because strangulation can sometimes leave little physical evidence.
"An autopsy is the best way to prove the serious bodily injury of strangulation," Olson said.
Strangulation might leave a victim with either bruising or a raspy voice, but sometimes it doesn't, Olson said. This does not equate to the damage done when a person's brain is deprived of either oxygen or blood, Olson said.
Robin Turner, public policy and legal director for Montana Coalition Against Domestic and Sexual Violence, described the long-term effects of strangulation that can't always be seen during an initial report. Strangulation can result in serious brain damage, short-term memory loss, loss of bladder control and sometimes death.
One victim who was strangled came out of the experience more submissive to her abuser, Turner said. The victim told Turner that after she felt how easy it was for her abuser to kill her, she thought he had more right to her life.
Strangulation is often used as a control tactic by abusers who might not intend to kill their victim, making it hard to charge strangulation as attempted homicide, Olson said.
When someone either puts their hands around another person's neck or blocks their airway, unconsciousness can occur in seconds and death in minutes, MacDonald said.
“We cannot protect these families without this law,” MacDonald said.
Senate Judiciary Chair Keith Regier, R-Kalispell, asked why the law was made specific to domestic relationships and not strangulation as a whole.
The need isn't in strangers strangling one another, Olson said. Where strangulation is seen most often is in homes, he said.
Sen. Chas Vincent, R-Libby, asked if the law would make it more likely that offenders who are not guilty are prosecuted based on a false accusation. In his own community, victims use the system to either discredit or punish former partners, Vincent said.
Prosecutors put a lot of effort into these cases, Olson said. This law wouldn't change the burden of proof needed, he said. It would simply acknowledge strangulation as a serious crime.
In Vincent's own district, 42-year-old Trevor Joseph Mercier was accused in October of killing his girlfriend, 30-year-old Sheena Devine.
Charging documents say Mercier told investigators he went to Devine's house to throw rocks at her car windows, but she came out to confront him. He said he put her in a "sleeper hold," causing her to lose consciousness. He said she was breathing and snoring when he left the house.
Mercier has pleaded not guilty to the charges.
The committee took no action after Thursday's hearing.