Statement of U.S. Attorney's Office for the District of Columbia Before D.C. Council Regarding Measures to Strengthen Protections for Victims-Survivors of Domestic Violence
Our Office is committed to protecting victims and survivors, providing support to these individuals and their families as they navigate the criminal justice process, and prosecuting those who harm others. We are committed to preventing intimate partner violence and, in 2019, our Office launched an Intimate Partner Violence Prevention Initiative, a focused effort within our Office to recognize intimate partner violence as a specific type of violence requiring unique tools to address, and increase the prosecutorial and advocacy resources devoted to the issue.
A felony offense of strangulation will enable the District of Columbia to combat and prosecute strangulation in a manner proportionate with the seriousness of the conduct. By enacting this important piece of legislation, the District will join the overwhelming majority of states—48 at present—in making this extremely dangerous—and potentially life-threatening—type of assault a felony.
Current law in the District creates three tiers of assault: felony aggravated assault that requires proof of serious bodily injury, punishable by a maximum of 10 years’ imprisonment; felony assault that requires proof of significant bodily injury, punishable by a maximum of 3 years’ imprisonment; and misdemeanor simple assault that requires no proof of any level of injury, punishable by a maximum of 180 days’ imprisonment. Because injuries stemming from non-fatal strangulation rarely qualify as either “serious bodily injury” or “significant bodily injury,” virtually all non-fatal strangulation cases can be prosecuted only as misdemeanor simple assault.
But strangulation is widely recognized as one of the most lethal forms of domestic violence, and categorizing that conduct as a misdemeanor does not adequately reflect that lethality. Strangulation is extremely dangerous: because it restricts the victim’s breathing and circulation of the blood, a victim can lose consciousness within 5-10 seconds and die within minutes. A major strangulation study in San Diego made the following findings: “Most strangulation cases produce minor or no visible injury. Many victims suffer internal injuries, including permanent brain damage. Signs and symptoms do exist and can be documented even without visible injury… Most abusers do not strangle to kill. They strangle to show they can kill. Victims often suffer major long-term emotional and physical impacts. Surviving victims are much more likely to die later if their abuser has strangled them.” The San Diego strangulation study also noted that “[o]ne study has shown that the odds of becoming a victim of attempted homicide increased by 700%, and the odds of becoming a homicide victim increased by 800%, for women who had been strangled by their partner.”
The District is in the distinct minority of jurisdictions by not having either a separate felony offense of strangulation or a means of criminalizing strangulation as a felony offense. Twenty-one (21) states have separate laws criminalizing strangulation as a stand-alone felony offense. Twenty-seven (27) other states have made strangulation a felony by including strangulation as a means of committing a felony-level offense, such as assault. Aside from the District, Ohio and South Carolina are the only states that do not have a felony strangulation law.
Creating a stand-alone felony offense of strangulation is preferable to categorizing strangulation-related injuries as a type of felony assault. A stand-alone offense of strangulation more appropriately captures and describes the conduct that is the subject of the offense. In addition, a stand-alone offense does not require proof of any level of injury, but rather focuses solely on the conduct. This recognizes that strangulation often results in no visible injuries, and should be classified as a felony regardless of the level of injury.
Further, consistent with the bill as introduced, strangulation should be categorized as a “crime of violence” under D.C. Code § 23-1331(4). This reflects the seriousness and violent nature of the offense of strangulation. In addition, this would make strangulation eligible for pretrial preventative detention under D.C. Code § 23-1322(b)(1)(A). Allowing pretrial preventative detention will in turn help to protect victims who have been strangled. This is particularly important given the elevated lethality risk to the victim following strangulation.
As to the bill’s proposal to expand victim access to confidential advocates, we support some of the goals of this proposal, but have concerns about these provisions as drafted. First, as to the creation of a right to a confidential advocate for a victim who has suffered gunshot or stabbing wounds during any interview with law enforcement at the hospital, we are concerned that this may inadvertently hamper law enforcement when they have an immediate need to speak with the victim about what happened to resolve an ongoing emergency (such as ascertaining the whereabouts of a suspect), ascertain what happened and locate crucial evidence or witnesses, or conduct initial investigative steps (such as securing a crime scene). Second, as to the expansion of these advocacy services to be confidential, a victim’s initial statements to another person about what happened are often a crucial part of an investigation, and making that conversation confidential may, similarly, impede a time-sensitive criminal investigation. This could be equally true if that conversation included inculpatory information—such as a victim’s emotional accounting of the offense—or exculpatory information—such as a victim contradicting a statement later made to law enforcement. To be clear, USAO believes that victims should be supported throughout the criminal justice process, and community-based advocates can play an important role in that support. We believe, however, that support can exist without some of the proposed expansions.
The U.S. Attorney’s Office proposes the following additional modifications to D.C. Code § 4-506(a) to allow victims who are impacted by post-conviction litigation to access the Crime Victims’ Compensation Program:
 Mr. Creighton, who leads this Initiative, collaborates with community partners to address intimate partner violence and further develop our Office’s expertise in investigating and prosecuting domestic violence cases. As a result of this Initiative, we have conducted trainings and community outreach events focused on informing the public of the resources that are available to combat domestic violence and to meet the security, emotional, and other needs of the survivors. We believe that continued education is crucial to both recognizing the dangers of strangulation and preventing intimate partner violence. For example, in 2020, our Office’s Intimate Partner Violence Prevention Initiative organized a training focused on identifying, investigating, and prosecuting cases involving strangulation. This training was developed in partnership with the Training Institute on Strangulation Prevention and was mandatory for all prosecutors at the U.S. Attorney’s Office who focus on prosecuting crimes involving sex offenses and domestic violence. We have also partnered with DC Forensic Nurse Examiners to conduct training for prosecutors at the U.S. Attorney’s Office.
 See D.C. Code § 22-404.01. “Serious bodily injury” is an injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. See Nixon v. United States, 730 A.2d 145, 150 (D.C. 1999) (adopting definition of “serious bodily injury” from D.C. Code § 22-3001(7) for purposes of aggravated assault statute). The D.C. Court of Appeals has held that, to qualify as “extreme physical pain” for purposes of the aggravated assault statute, “the level of pain necessary to constitute serious bodily injury must be exceptionally severe if not unbearable,” and has suggested “that a victim’s physical pain may have to be so severe as to be immobilizing to satisfy the serious bodily injury requirement.” Jackson v. United States, 940 A.2d 981, 987–88 (D.C. 2008) (internal citations omitted).
 See D.C. Code § 22-404(a)(2). “Significant bodily injury” is defined as “an injury that requires hospitalization or immediate medical attention.” Id. The D.C. Court of Appeals has interpreted “immediate medical attention” to refer to “treatment”; “in other words, the ‘attention’ required is not satisfied by mere diagnosis. This treatment, in turn, must be aimed at one of two ends—preventing long-term physical damage and other potentially permanent injuries or abating pain that is severe instead of lesser, short-term hurts. Such treatment must exceed first-aid remedies such as ice packs, bandages, and over-the-counter medications, even if administered by a medical professional. The standard is objective: the relevant inquiry is not whether a person in fact receives immediate medical attention but whether medical treatment beyond what one can administer himself is immediately required to prevent long-term physical damage, possible disability, disfigurement, or severe pain.” In re D.P., 122 A.3d 903, 911–12 (D.C. 2015) (internal citations omitted).
Further, even where strangulation results in loss of consciousness, the D.C. Court of Appeals has held that a brief loss of consciousness of approximately a minute or less does not qualify as a “significant bodily injury.” D.P., 122 A.3d at 913; see also Vaughn v. United States, 93 A.3d 1237, 1269 n.39 (D.C. 2014) (questioning but not deciding whether any loss of consciousness, however brief, could amount to the requisite serious bodily injury to sustain an aggravated assault conviction (cited in D.P., 122 A.3d at 913 n.10)). Moreover, if the victim is the only witness to the loss of consciousness, the victim may not be able to ascertain how long they were unconscious or be able to establish that the loss of consciousness lasted more than a “brief” time.
 See D.C. Code § 22-404(a)(1).
 If a person used a dangerous weapon to commit strangulation, that conduct could be prosecuted as felony assault with a dangerous weapon, punishable by a maximum of 10 years’ imprisonment. See D.C. Code § 22-402.
 See Training Institute on Strangulation Prevention, Strangulation in Intimate Partner Violence Fact Sheet (2017) (available at https://www.familyjusticecenter.org/resources/strangulation-intimate-partner-violence-fact-sheet/).
 Gael Strack and Casey Gwinn, Strangulation and Domestic Violence: The Edge of Homicide, Domestic Violence Report, at 90 (August/September 2014) (available at https://www.familyjusticecenter.org/wp-content/uploads/2019/05/DV-Report-8.2014.pdf) (emphasis in original; internal citations omitted).
 Id. at 93. Similarly, research conducted by Nancy Glass, PhD, MPH, RN at Johns Hopkins University found that “[w]omen who were the victims of completed or attempted homicide were far more likely to have a history of strangulation compared to the abused control women.” Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women, Journal of Emergency Medicine, 35(3) (2008) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2573025/). Glass’s research found that “strangulation is a relatively prevalent form of violence toward women who experience physical violence in an abusive relationship (a finding consistent with the sparse literature on the subject) and is a significant predictor for future lethal violence.” Id.
In her book No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us, Rachel Louise Snyder also focuses on the dangers of strangulation: “Those strangled to the point of losing consciousness are at their highest risk of dying in the first twenty-four to forty-eight hours after the incident from strokes, blood clots, or aspiration (choking on their own vomit). Such incidents can cause brain injury—mild or traumatic—not only by cutting off oxygen to the brain, but because they are often accompanied by blunt force trauma to the head. Still, domestic violence victims are not routinely screened for strangulation or brain injury in emergency rooms, and the victims themselves, who tend to have poor recall of the incident, are often not even aware that they’ve lost consciousness.” Snyder at 65–66 (citations omitted).
 Those states are: Alabama, Ala. Crim. Code § 13A-6-138; Connecticut, Conn. Gen. Stat. § 53a-64aa; Delaware, Del. Code Ann. tit. 11, § 607; Florida, Fla. Stat. § 784.041; Idaho, Idaho Code § 18-923; Indiana, Ind. Code § 35-42-2-9; Kentucky, Ky. Rev. Stat. Ann. § 508; Massachusetts, Mass. Gen. Laws ch. 265, § 15D; Michigan, Mich. Comp. Laws. § 750.84; Minnesota, Minn. Stat. § 609.2247; Montana, Mont. Code Ann. § 45-5-215; Nebraska, Neb. Rev. Stat. § 28-310.01; New York, N.Y. Penal Law §§ 121.11 – 121.13; North Carolina, N.C. Gen. Stat. § 14-32.4; Oregon, Or. Rev. Stat. § 163.187; Pennsylvania, Pa. Cons. Stat. § 2718; Rhode Island, RI. Code R. § 11-5-2.3; Virginia, Va. Code Ann. § 18.2-51.6; West Virginia, W. Va. Code § 61-2-9d; Wisconsin, Wis. Stat. § 940.235; and Wyoming, Wyo. Stat. Ann. § 6-2-509.
 Those states are: Alaska, Alaska Stat. §§ 11.41.201 et seq.; 11.81.900 (including strangulation as a means of committing felony-level assault); Arizona, Ariz. Rev. Stat. § 13-1204 (same); Arkansas, Ark. Code § 5-13-204 (same); California, Cal. Penal Code § 273.5 (including strangulation-related injury in a domestic violence context as a means of committing felony-level offense); Colorado, Colo. Rev. Stat. § 18-3-202 (including strangulation-related serious bodily injury as a means of committing felony-level assault); Georgia, Ga. Code § 16-5-21 (including strangulation as a means of committing felony-level assault); Hawaii, Haw. Rev. Stat. § 709-906 (including strangulation in a domestic violence context as a means of committing felony-level offense); Illinois, Il. Comp. Stat. § 5/12-3.3 (same); Iowa, Iowa Code § 708.2A (including strangulation in a domestic violence context as a means of committing aggravated misdemeanor, or as a means of committing felony-level offense if strangulation resulted in bodily injury); Kansas, Kan. Stat. Ann. § 21-5414 (including strangulation in a domestic violence context as a means of committing felony-level offense); Louisiana, La. Stat. Ann. § 14:35.3 (same); Maine, Me. Rev. Stat. tit. 17-A, § 208 (including strangulation-related injury as a means of committing felony-level assault); Maryland, Md. Code Ann., Crim. Law § 3-202 (including strangulation as a means of committing felony-level offense); Mississippi, Miss. Code § 97-3-7 (including strangulation in a domestic violence context as a means of committing felony-level assault); Missouri, Mo. Rev. Stat. § 565.073 (including strangulation in a domestic violence context resulting in physical injury as a means of committing felony-level assault); Nevada, Nev. Rev. Stat. § 200.481 (including strangulation as a means of committing felony-level offense); New Hampshire, N.H. Rev. Stat. § 631:2 (including strangulation as a means of committing felony-level assault); New Jersey, N.J. Rev. Stat. § 2c:12-1 (including strangulation as a means of committing felony-level assault); New Mexico, N.M. Stat. § 30-3-16 (including strangulation in a domestic violence context as a means of committing felony-level offense); North Dakota, N.D. Cent. Code §§ 12.1-01-04(27), 12.1-17-02 (including strangulation-related injury as a mean of committing felony-level assault); Oklahoma, Okla. Stat. tit. 21, § 644 (including strangulation in a domestic violence context as a means of committing felony-level assault); South Dakota, S.D. Codified Laws § 22-18-1.1 (including strangulation as a means of committing felony-level assault); Tennessee, Tenn. Code § 39-13-102 (same); Texas, Tex. Penal Code Ann. § 22.01 (including strangulation in a domestic violence context as a means of committing felony-level assault); Utah, Utah Code § 76-5-103 (including strangulation as a means of committing felony-level assault); Vermont, Vt. Stat. tit. 13, § 1024 (same); Washington, Wash. Rev. Code Ann. § 9A.36.021 (same). Federal law also criminalizes strangulation as a felony, 18 U.S.C. § 113(a)(8), and U.S. Sentencing Commission Guidelines create an enhancement for an aggravated assault that involved the use of strangulation. U.S. Sentencing Guidelines Manual § 2A2.2(b)(4) (U.S. Sentencing Comm’n 2018). A survey of all state laws regarding strangulation can be found on the website of the Training Institute on Strangulation Prevention, located at https://www.strangulationtraininginstitute.com/resources/legislation-map.
 In their final recommendations to the Mayor and Council, the D.C. Criminal Code Reform Commission (CCRC) made strangulation-related injuries eligible for felony prosecution by defining “significant bodily injury” to include “a contusion, petechia, or other bodily injury to the neck or head sustained during strangulation or suffocation.” Report #70—Criminal Code Reform Commission (CCRC) Recommendations for the Council and Mayor (Voting Draft) at 57. “Bodily injury” is defined as “physical pain, physical injury, illness, or impairment of physical condition.” Id. at 44. “Strangulation or suffocation” is defined as “a restriction of normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth.” Id. at 58. In recommending that strangulation-related injuries qualify as felony conduct, the CCRC’s Commentary states: “The including of a contusion (bruise) or other bodily injury to the neck or head sustained during ‘strangulation or suffocation,’ as defined in RCC § 22E-701, reflects the heightened seriousness of such injuries, particularly in light of research indicating such injuries are often linked to more serious patterns of violence.” Report #70 – CCRC Recommendations for the Council and Mayor, Commentary on Subtitle I. General Part, Chapter 7, at 647–48 (citing to Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women).
 As Dr. Glass found, “[n]on-fatal strangulation, as opposed to other severe forms of physical violence such as striking with fists or another object, frequently leaves little in the way of observable injury, yet can result in serious physical and mental health consequences.” Nancy Glass et al., Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women.
 In her book No Visible Bruises, Ms. Snyder stated that, according to Casey Gwinn, “every jurisdiction that has prosecuted strangulation as a felony with a multidisciplinary team has seen a drop in homicides.” Snyder at 68.
 This violation is punishable by up to 6 months’ imprisonment, and up to a $1,000 fine. D.C. Code § 23-1329(c).
 The applicability of this provision is limited to “[a] person who has been conditionally released pursuant to section 23-1321.” D.C. Code § 23-1329(a). As its heading indicates, D.C. Code § 23-1321 applies to those who are released “prior to trial.” D.C. Code § 23-1321 also applies to those who are on release awaiting sentencing. See D.C. Code § 23-1325(b).
 In Jones v. United States, the D.C. Court of Appeals held that the use of the general contempt power in D.C. Code § 11-944(a) was “inappropriate” to punish a violation of a condition of probation, and that “violation of a condition of probation may be sanctioned only through revocation of probation and imposition of all or part of the original sentence.” 560 A.2d 513, 517 (D.C. 1989).
 This is particularly true in the intimate partner violence context, where research has shown that victims of intimate partner violence experienced a greater percentage of repeat violence than victims of other types of criminal behavior. See Barbara A. Oudekerk and Jennifer L. Truman, U.S. Dep’t of Justice, Bureau of Justice Statistics, Repeat Violent Victimization, 2005–14, at 6 (2017), available at bjs.gov/content/ pub/pdf/rvv0514.pdf. In addition, research shows that, for domestic violence abusers who reoffend, a majority do so shortly after their release from incarceration. See U.S. Dep’t of Justice, National Institute of Justice, Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges, at 21 (June 2009), available at https://www.ncjrs.gov/pdffiles1/nij/225722.pdf.
 At that time, the WALES law enforcement database only included stay away orders issued as part of civil protection orders pursuant to D.C. Code § 16-1001 et seq. The WALES database did not include stay away orders issued as part of a criminal case, either pre-trial or post-disposition, so these stay away orders would not have been visible to MPD through this database. In addition, all documents in connection with criminal cases whose parties meet the definition of “intrafamily offense,” as that term is defined in D.C. Code § 16-1001(9) (which this case would), are not included in the Superior Court’s public website called “CourtView,” although those documents are available in the JUSTIS database. Accordingly, it would have been difficult for the responding officers to locate the post-conviction judgment and commitment order (with the stay away as a condition of probation and the term of probation). To rectify this issue, USAO personnel (including Intimate Partner Violence Prevention Initiative Ryan Creighton and others) have been actively working with Superior Court and MPD to have all stay away orders put into WALES so that law enforcement can access these orders through that system.