SALT LAKE CITY — Two thousand miles from their South Carolina home, the newlyweds began fighting in their South Salt Lake motel.
She poured out his drink, so he punched her in the face, charging documents state. She scrambled to pocket keys to the van. He then lifted her up by her throat with his right hand, grabbing for the key ring as she kicked at him.
He wrapped both hands around her neck as her feet hovered above the floor, according to court documents. Ten or 15 seconds later, she exhaled, her eyes rolled back and her body went limp. The bride’s 14-year-old son watched and cried out as the husband let go. Her face slammed against the wall, then she was motionless.
A Salt Lake jury found Timothy Noble Walker guilty of aggravated assault, a third-degree felony. But the Utah Court of Appeals in January ordered a new trial: The lower court had committed an error in effectively telling jurors that if someone chokes another person to the point of unconsciousness, that constitutes a felony.
Utah code contains no such definition, the appeals judges wrote.
The conviction was thrown out on a technicality, illuminating a deadly gap in the law, prosecutors and advocates told a legislative panel at the state Capitol last week.
“We think it’s time for Utah to have this crime defined as an aggravated assault,” said Rep. Lowry Snow, an attorney and former prosecutor. The Santa Clara Republican is sponsoring a legislative proposal he says will remove the loophole.
Proponents say the measure could prevent deaths by putting offenders behind bars before they end up killing loved ones. But critics contend the proposal could erase a requirement for physical evidence in court, clearing the way to felony convictions for defendants who are innocent or others who don’t deserve long sentences.
Permanent damage
Victims say a law outlining choking as an element to warrant aggravated assault charges is past due. Jennifer Gardiner, of West Jordan, told the panel her ex-husband years ago strangled her in a car. He went to prison for beating her that night, smashing the left side of her face and breaking her nose.
Gardiner said decades later, the chokehold still affects her, causing her pain from permanent nerve damage.
“I will never forget those two minutes with his hands around my throat,” Gardiner said, “knowing that moment could be my last breath,” and that her three children might grow up without a mother.
The Utah bill first brought forward a decade ago seeks to strengthen the penalty for cutting off breathing and blood flow in a way that will likely leave the victim unconscious. The measure is vital, advocates and experts say, pointing to research, including one study published in the Journal of Emergency Medicine showing that 43 percent of women who were choked during an abusive relationship were later murdered. When violent partners block their significant other’s airways, they are often signaling a willingness to kill.
Under the bill, someone could be charged with aggravated assault, a third-degree felony, if he or she forcibly chokes a person by impeding their breathing or circulation by applying pressure or obstructing airways. If the victim loses consciousness, such action could be charged as a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. The proposed law also would apply to child abuse cases.
A curious crime
Choking takes effect rapidly. It can cause loss of consciousness in 15-20 seconds; brain injury and death can follow within minutes. But the crime is a difficult one to prosecute. Often, victims have only minimal bruising or show no physical evidence at all, despite the potential for long-term trauma and brain aneurysms, among other problems.
It often has been treated as a misdemeanor, which in Utah results in maximum sentences of between three months to a year in jail and up to a $2,500 fine.
“The fact you can strangle somebody and it’s treated the same as if you punched them is appalling, because the two are very different in their potential for lethality,” retired Utah medical examiner Todd Grey said Friday.
Prosecutors sought to make the distinction in the case of the South Carolina couple. But defense attorneys fought back, noting that the wife declined to go to the hospital that night. She went to the doctor in coming days for her sore head and neck and was told to rest, but she didn’t receive any other treatment for her concussion and headaches. She testified she didn’t think she sustained long-term injuries, court records state.
On top of that, an expert medical witness said victims can make a quick recovery from brief pressure on the carotid artery that leaves them unconscious for a short time.
A national movement
“This bill is exactly what we need,” said Donna Kelly, a deputy district attorney for Salt Lake County and former Utah County prosecutor. If someone fires a gun at another and they miss, causing no injuries, it’s considered attempted homicide, Kelly notes. But if people strangle without killing someone, she said, it’s not treated as seriously.
Nationwide, that is changing. Forty-one states have raised penalties for the crime, Snow says.
Utah has long inched toward passing the law, considering the measure as early as 2007. And in 2010, the Legislature in a nonbinding resolution urged law enforcement to treat as felonies cases containing evidence that the defendant exerted enough pressure on someone’s head or neck to create a substantial likelihood of impeding normal breathing and blood flow.
“I tried passing the law, and I couldn’t get it through,” said Jennifer Seelig, the now-retired House minority leader who sponsored the resolution.
Striking a balance
The measure led to training for Utah police from local attorneys and national advocates, which taught officers to check for signs of attempted strangulation. But the continued focus on visible injuries has hindered prosecutions, Salt Lake County deputy district attorney Will Carlson told the legislative panel.
In January, another jury in a Salt Lake County cleared a husband charged with aggravated assault. Jurors said it was obvious he had strangled his wife, Carlson said, but she didn’t have visible injuries, so they decided it wasn’t enough to merit a felony conviction.
“This bill will shift the focus from what you can see on the victim to what the defendant actually did,” Carlson said.
Some, however, warn that such a shift could be a dangerous one.
“It makes it easier for prosecutors to convict people. They won’t have to rely on experts or won’t have to prove that it causes serious bodily injury,” said Steve Burton, legislative committee chairman for the Utah Association of Criminal Defense Lawyers.
Burton believes the measure could land felony convictions for such minor entanglements as putting someone in a headlock during a fight on a baseball field.
And the proposal continues to face resistance within the Legislature. Last year, it passed the House but failed to reach the Senate floor. Lawmakers expressed concern about the price tag, a projected $500,000 in the first three years to incarcerate additional people under the new law. Defense attorneys made their concerns known then, too.
Grey, the former medical examiner, believes any change that makes abusers think twice about becoming violent is a good move.
“There’s way too much of that going on in Utah homes,” he said.
In Utah, domestic violence — from a family member, partner, spouse or roommate — ends in roughly two dozen deaths each year, according to preliminary data from the Utah Department of Health. The department does not track reports of strangulation or attempted strangulation.
The House Law Enforcement and Criminal Justice Committee passed the measure in a unanimous vote Thursday. The bill now goes to the full House for consideration.