Today in the House Judiciary Committee we voted on Senate File 93, “An act enhancing the penalty for certain domestic abuse assault cases and providing a penalty,” better known as the strangulation bill. The bill passed, 16 ayes/2 nays — I was one of the nays. I received several emails about this bill in the past few days asking me to support it, and I haven’t had a chance to respond to those people, so I am going to do so publicly, since I’m guessing there will be others wondering why I voted no.
First off, let me make it clear that I do not believe that it is appropriate or acceptable for anyone to strangle or smother anyone else, whether they qualify as domestic partners or not. But … we already have laws to punish acts of strangulation and/or smothering– laws that apply to everyone, not just domestic partners. For example: Jack and Diane, who have hated each other since high school, get into a big fight outside HyVee. Jack calls Diane a bad name, and Diane chokes Jack to death, or smothers him w/her plastic grocery bag, on purpose. Diane is going to be charged with 1st Degree Murder, which carries a penalty of life without parole, or possibly 2nd Degree Murder, a Class B felony carrying 50 years in prison. If Diane attempts to choke/smother Jack to death, but Jack manages to run away, Diane can be charged with Attempted Murder, a Class B felony also carrying 50 years in prison (even if Jack is completely uninjured). If Diane chokes/smothers Jack with the intent to injure him (i.e., she’s mad, but not mad enough to want to kill him) that’s an aggravated misdemeanor, even if Jack isn’t injured. And if Diane chokes/smothers Jack with the intent to seriously injure him, and she does seriously injure him, that’s a Class C felony (ten years in prison)–if the injury isn’t serious (e.g., she bruises him) then it’s a Class D felony (five years in prison).
And if Jack and Diane are domestic partners as defined by Iowa Code section 236.2(2),(a)-(d) then in addition to the above penalties, Diane would also be required to complete the Batterer’s Education Program, and she would be disqualified from ever possessing a firearm, and there would be a no contact order immediately put into place enjoining her from having any contact with Jack (and/or their kids, probably, if they have kids) for at least a year and for up to five years. All of which is no doubt appropriate if Diane tries to choke/smother/hurt her significant other, because domestic abuse is a serious problem, and the law needs to take it seriously, and I believe that the current law does take it very seriously. Do some abusers get off too lightly? Absolutely. But that’s usually because someone (prosecutor/jury/judge/investigator) dropped the ball, not because we don’t have enough crimes on the books.
And in fact, Senate File 93 doesn’t create a new crime at all. Instead, it takes behavior that is already a simple misdemeanor offense — knowingly impeding the normal breathing/circulation of another by applying pressure to the throat/neck, or by obstructing the nose or mouth of the other person, without causing injury — and bumps it up two levels to an aggravated misdemeanor. And if there’s an injury (e.g., a scratch or a bruise) the penalty increases to a Class D felony. So Senate File 93 takes a crime that already exists, and, if the victim is a domestic partner of the defendant, the penalty is more serious. A lot more serious. Prison serious. Which is a big deal, and which is way out of proportion, and, more importantly, which does not appear to actually make anyone safer, as far as I can tell.
If the goal is to get the abuser out of the home, away from the abused spouse, for an extended period of time, that already happens under current law — whether it’s a simple misdemeanor, or an aggravated, or a felony, the filing of any domestic abuse assault charge normally triggers the entry of a no contact order, that remains in place from one to five years (unless the victim requests that it be lifted, which is totally up to the judge). If the goal is to turn the abuser spouse into a felon, so he can’t get a job and thus can’t pay child support — well, this bill will accomplish that.
And here’s what I fear will happen if/when Senate File 93 becomes law: If Mr. and Mrs. Jack and Diane are arguing, and Jack puts his hand over Diane’s mouth for 5 seconds to shush her screaming so she can hear his screaming, Jack will be guilty of an aggravated misdemeanor. Under current law it’s only a simple misdemeanor, carrying a sentence of up to 30 days in jail, BEP completion, lifetime firearm disability, and a no contact order — this bill bumps the period of incarceration up to an indeterminate 2 year prison sentence. If Diane does the same thing to Jack, and while doing so accidentally scratches him with her ring, or if she elbows Jack in the throat to shut him up and while doing so bruises him, that’s a Class D felony. Under current law it’s a serious misdemeanor, carrying up to a year in jail, BEP completion, lifetime firearm disability, and a no contact order–this bill bumps the period of incarceration up to an indeterminate 5 years in prison. For something that would only merit a fine if it happened between non-domestic partners.
Should Jack be shutting Diane up by putting his hand over her mouth? No way. Should Diane be shutting Jack up by elbowing him in the throat? Absolutely not. But these actions simply do not rise to the level of strangulation, especially if it’s the first time it happened, and calling it a strangulation bill is inaccurate, and making people felons and threatening them with prison for these types of relatively minor assaults is just way out of proportion to the offense, especially if it doesn’t make anyone safer.
I am sure that the ultimate goal of SF 93 is not to create a bunch of new felons and lock a lot more people up in prison–I’ve been told that the official goal is to prevent women from being strangled to death by their abusive spouses, and I believe it — however, if we create a law making it a felony if one domestic partner tries to shush the other during an argument by covering up his/her mouth and in the process of doing so accidentally scratches him/her — well then, Mr. Jack is going to be charged with a felony if he does that to Mrs. Diane, for sure. And don’t get me wrong, Mr. Jack should be charged with a crime, but a serious misdemeanor (a year in jail! no guns ever! BEP classes! a no contact order!) is the more appropriate level of charge, and that is exactly what Mr. Jack could be charged with and convicted of, under current law.
And as far as preventing future deaths by strangulation, that’s a very worthy goal, and I respect it — but bottom line, I simply don’t understand how this bill will do anything to accomplish that goal, or why women are going to be any safer if this law passes than they are right now. If someone could explain that to me in a way that makes sense, other than just saying “It will prevent deaths,” then I would vote for the bill right this second. Until then, I’m a no.
But here’s how I do think that Iowa could reduce the number of people who die due to domestic violence, including deaths by strangulation — I propose that instead of creating a new felony that will require counties and the State to expend lots of money to prosecute and supervise and incarcerate people (in prison!) for relatively minor assaults, let’s turn all that money over to the many wonderful organizations around the state (like our own local YWCA) that provide emotional and financial assistance to people trapped in abusive relationships and help them escape those abusive relationships once and for all. These organizations save hundreds (probably thousands) of lives every year, and I bet if we gave then an extra million dollars or so, they could save hundreds more. That’s a definite yes vote for me.
I think I’ll file an amendment.