Statement of U.S. Attorney’s Office for the District of Columbia

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

Chairman Allen and Members of the Council:

(STL.News) My name is Elana Suttenberg, and I am the Special Counsel for Legislative Affairs at the United States Attorney’s Office for the District of Columbia (USAO).  I am accompanied today by my colleagues, Sharon Marcus-Kurn, Chief of the Sex Offense and Domestic Violence Section, and Ryan Creighton, a Senior Assistant United States Attorney in that Section who spearheads our Office’s Intimate Partner Violence Prevention Initiative, who are available to assist in answering the Committee’s questions.  I thank you for the opportunity to appear at today’s public hearing on the proposed legislation.

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.[1]

Bill 24-0116, the “Victims’ Protection Amendment Act of 2021”

Consistent with this commitment, we are proud to support the Victims’ Protection Amendment Act of 2021, introduced by Mayor Muriel Bowser.  This bill would create a felony offense of strangulation and create an offense for violating a post-conviction stay away or no contact order, both of which would protect victims—particularly victims of intimate partner violence.

Felony Strangulation

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;[2] felony assault that requires proof of significant bodily injury, punishable by a maximum of 3 years’ imprisonment;[3] and misdemeanor simple assault that requires no proof of any level of injury, punishable by a maximum of 180 days’ imprisonment.[4] 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.[5]

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.[6] 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.”[7] 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.”[8]

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.[9] 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.[10] Aside from the District, Ohio and South Carolina are the only states that do not have a felony strangulation law.[11]

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.[12]

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.[13]

Creation of an Offense for Violating a Post-Conviction Stay Away or No Contact Order

To further protect victims of intimate partner violence, it is necessary to eliminate a legal loophole under current District law, and to create an offense for violating a post-conviction stay away or no contact order.

Under D.C. Code § 23-1329(c), contempt sanctions may be imposed if a person “intentionally violate[s] a condition of his release,” which would include a violation of a stay away/no contact order.[14] This contempt sanction, however, only applies to individuals who have been released prior to trial or sentencing.[15] Individuals who violate a condition of their release—including stay away provisions—while they are on probation, supervised release, or parole are not subject to contempt liability either under D.C. Code § 23-1329(c) or under the general contempt provision in D.C. Code § 11-944(a).[16]

This situation creates an illogical and potentially fatal loophole in the D.C. Code. Under current law, there is no meaningful immediate enforcement mechanism for violation of a condition of post-disposition release.  If a defendant is alleged to have violated a condition of their probation, the defendant’s supervising officer at the Court Services and Offender Supervision Agency (CSOSA) may present an Alleged Violation Report (AVR) to the presiding judge.  The presiding judge may issue a “show cause order,” which orders the defendant to appear in court and to show cause why their probation should not be revoked.  This situation does not, however, permit law enforcement to make an immediate, on-the-scene arrest, which may be appropriate, if not essential.  If a defendant is at that moment violating a stay away or no contact order, that violation directly implicates the safety of the community, and could impact the life or safety of the victim whom the order is intended to protect.[17] To permit an officer to make a warrantless arrest for this offense, a conforming amendment to D.C. Code § 23-581 is required.

The tragic and brutal murder of Paula Coles illustrates the serious flaws in the current system.  On September 27, 2017, Paula Coles was murdered by her abusive former romantic partner.  At the time of her murder, the defendant was on probation after being convicted of assaulting Ms. Coles and their 9-month-old son on July 5, 2017.  A specific court-ordered condition of his probation was that he was to stay away from, and have no contact with, Ms. Coles.

On September 15, 2017, the defendant was released from custody after serving his sentence.  Less than 12 hours before the murder, in the late hours of September 26, 2017, Ms. Coles called 911 to report an argument that had erupted between the defendant and Ms. Coles, and between the defendant and an individual with whom Ms. Coles was now romantically involved.  The defendant fled the scene before police arrived.

Ms. Coles showed responding MPD officers a copy of the pretrial stay away order that had been previously imposed, as well as the judgment and commitment order in the criminal case that contained the stay away order.  Police checked certain electronic records and were not able to locate a stay away order in the system against the defendant.[18] Critically, because a violation of a post-conviction stay away order is not a stand-alone offense, even if police had been able to confirm the presence of the properly issued probationary stay away order, they could not have immediately arrested the defendant for violating that order.  Instead, their only remedy would be to return to their office, request that CSOSA file an AVR, and wait for the court to schedule a show cause hearing.

After police left, the defendant continued to call Ms. Coles throughout the night.  Several people overheard the defendant telling Ms. Coles that he would kill her.  The following morning, the defendant stabbed Ms. Coles to death.  The defendant was later arrested and ultimately pled guilty and admitted to murdering Ms. Coles.

Bill 24-0075, the “Expanding Supports for Crime Victims Amendment Act of 2021”

As to the Expanding Supports for Crime Victims Amendment Act of 2021, we believe that victims, survivors, and their families should be supported as they navigate the aftermath of a traumatic experience.  To that end, our Office’s Victim/Witness Assistance Unit—which includes 16 highly experienced victim advocates who work within the Office and have specialties that include working with child victims, domestic violence victims, and families of homicide victims—provides support to victims throughout the criminal justice process.

We support the bill’s expansion of access to Crime Victims Compensation Program funds, which will allow victims to receive financial assistance and reimbursement for necessary expenses such as funeral costs, medical and mental health expenses, and temporary shelter.  We also support providing access to the Crime Victims Compensation Program for victims who are impacted by post-conviction litigation, including where motions have been filed under the Incarceration Reduction Amendment Act or for compassionate release.  These motions—filed years after the original sentencing—may cause victims to reopen and relive a painful chapter in their lives, and these victims and their families deserve access to services such as therapy.  In our written testimony, we have proposed redline changes to the relevant provisions.

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.