Strangulation: Why Rough Sex is Never An Acceptable Defense

New Jersey recently passed a law elevating strangulation from a third-degree to a second-degree crime. This step represents important progress towards matching legal penalties to the direness of strangulation, especially in domestic violence situations where strangulation is a leading predictor of future domestic violence homicide.

Just as our legal system is finally taking the crime of strangulation more seriously, however, the act of strangulation continues to gain mainstream acceptance as a form of “sex play” between consenting partners.?

Victims of strangulation already have enough difficulties coming forward. The glorification of sexual violence is one more barrier. And there’s even more to it than that. In strangulation cases brought before the courts, the loophole of the “rough sex” defense can result in reduced charges, obscuring domestic violence and failing victims seeking justice.?

I recently wrote about strangulation laws and the hurdles victims face in getting help for the New Jersey Law Journal. Here are some highlights from my 9-point analysis:?

??????Strangulation is a form of coercive control and a strong predictor of subsequent domestic violence homicide. A survivor of strangulation is seven times more likely to become a homicide victim than a victim without a strangulation history.

·????Many states have added or upgraded penalties for strangulation offenses, but gaps in victim-protection remain. Laws differ in intent requirements, behavior or severity of injury covered, applicability of self-defense, and/or applicability of domestic violence laws.

??????Strangulation is an underreported form of domestic violence. A survivor of strangulation often has no visible injury. When there is a lack of physical evidence, victims may be especially reluctant to seek help or disclose the incident to police or legal counsel. Getting a medical exam is key for victims of strangulation as internal injuries may be present. Other signs of strangulation include a raspy or hoarse voice or loss of voice, coughing, and difficulty swallowing.

·????Sexual violence, including strangulation as a form of “sex play,” has been normalized in U.S. culture. Both pornography and mainstream magazines sometimes portray strangulation as sexually appealing and safe. This normalization has direct ramifications. As I noted in my NJLJ article, a 2019 article in the Atlantic?reported the shocking statistical finds that 25% of women in the U.S. felt scared during sex, and 13% of sexually active girls from 14 to 17 had already been strangled.One young man told the Guardian in 2019 that “he chokes his girlfriend, and has done for several years, ‘because she likes it’.” He later added, “I thought about our conversation and asked her about it. She said she doesn’t actually like it; she thought I liked it. But the thing is, I don’t: I thought it’s what she wanted.”

·????The “rough sex defense” persists as a dangerous loophole to enforcement of laws against strangulation. If strangulation is reported, a perpetrator may claim that the incident was part of consensual sex play, which under some circumstances could raise a viable defense.

·????Consent to “rough sex” can be a defense to assault in New Jersey. In the 2017 case of TM v. RMW (195 A. 3d 152), the New Jersey superior court stated that consent to “rough sex” could be an affirmative defense to assault or harassment pursuant the New Jersey consent statute, N.J.S.A. 2C:2-10.

·????The normalization of strangulation contributes to minimization. If a woman dies through strangulation and the defense claims that the death resulted from a sex game gone wrong, judges and juries may find it easy to accept the idea that the victim engaged in the “game” voluntarily.

·????The general rule under U.S. law is that one cannot consent to circumstances that carry a risk of serious bodily injury. Consent to any degree of bodily harm generally requires reasonable acceptance of a reasonably foreseeable harm, plus the receipt of a benefit by the consenting party. When lack of consent is an essential element of a crime, consent is also a defense. Consent is invalid, however, if induced by force, duress or deception, or offered by someone who is legally incompetent or unable make a reasonable judgment as to harmfulness.

·????Normalization of strangulation perverts the concept of “consent.” ?Strangulation poses a direct threat to life. Is it really “reasonable acceptance” of a “reasonably foreseeable harm” to consent to something that is inherently unsafe but is presented as safe by popular culture?

Doing more to protect victims of strangulation

Just as we continue to find ways to strengthen laws against domestic violence, so too must we find ways to make existing laws effective. This means raising awareness of the dangers of strangulation, a challenging proposition in a society in which strangulation is sometimes portrayed as a safe and fun adult activity or “just part of rough sex.”

Something that’s stayed with me whenever I think about this topic is the HBO miniseries, Big Little Lies, in which the protagonist, a beautiful, successful mother, insists to everyone, even her therapist, that she and her husband simply have a wild sex life and that she enjoys it, while the audience becomes increasingly aghast at her husband’s obviously abusive behavior. Victimization can be difficult to admit. Denial is a defense to feelings of helplessness

Key takeaways

1.?Law enforcement personnel and providers of legal, medical, and social services need to understand the barriers victims of strangulation often face.

2.?If a victim has little or no visible injury but claims that strangulation occurred, the involved professional should assist the victim in still seeking medical attention and documenting the incident by writing out a step-by-step account.

3.?Victims of strangulation can take out restraining orders against their abusers for their personal protection. Strangulation is now a second degree crime in New Jersey.

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