AGGRAVATED ASSAULT- EXTREME INDIFFERENCE STRANGULATION.

Posted September 22, 2014

Edmund R. Folsom, Esq.

AGGRAVATED ASSAULT- EXTREME INDIFFERENCE STRANGULATION.

The 2012 amendment to Maine’s aggravated assault statute, 17-A M.R.S.A. §208, have received recent media attention because of the spike they created in the number of aggravated assault prosecutions brought under the theory of “extreme indifference to the value of human life.” In 2011, there were 29 aggravated assault prosecutions in Maine based on a theory of extreme indifference to the value of human life. In 2012, that number jumped to 79, and in 2013 the number jumped again to 170. Compare this to the 104 aggravated assault prosecutions commenced in 2013 based on serious bodily injury and 183 based on the use of a dangerous weapon, and it begins to look like a strangulation epidemic has broken out in Maine. What’s going on here?

There are three ways a person can commit an aggravated assault in Maine. Aggravated assault is committed when a person intentionally, knowingly or recklessly either: (1) causes serious bodily injury (defined as an injury that creates a substantial risk of death, or serious permanent disfigurement, or the loss or substantial impairment of the function of a bodily member or organ, or extended convalescence necessary for recovery of physical health) to another; or (2) causes bodily injury to another with the use of a dangerous weapon (defined as a firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which, in the manner it is used or threatened to be used is capable of producing death or serious bodily injury); or (3) causes bodily injury (defined as physical pain, physical illness or any impairment of physical condition) to another under circumstances manifesting extreme indifference to the value of human life. For a very long time, the aggravated assault statute has contained an explanation that circumstances manifesting extreme indifference to the value of human life “include but are not limited to, the number, location or nature of the injuries, the manner or method inflicted or the observable physical condition of the victim.” In other words, it has long been the case that a person commits aggravated assault by intentionally, knowingly or recklessly causing bodily injury to another person under circumstances that demonstrate the perpetrator’s extreme indifference to whether the victim lives or dies. Pushing a person out a third story window or pushing a person off a cliff might do, regardless whether the conduct actually results in serious bodily injury. The ultimate issue has always been whether the defendant’s conduct in fact manifests extreme indifference to the value of human life.

As discussed above, prior to the 2012 amendments, the aggravated assault statute stated that circumstances manifesting extreme indifference to the value of human life “include but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim.” The 2012 amendments expanded the list of circumstances manifesting an extreme indifference to the value of human life by adding, after the words “condition of the victim,” the words “or the use of strangulation.” These amendments also state that “‘strangulation’ means the intentional impeding of the breathing or circulation of the blood of another person by applying pressure on the person’s throat or neck.”

Under the ordinary definition of the term, a person who “strangles” another person causes the other person’s death by squeezing or constricting the other person’s neck. The Boston Strangler was a strangler because of the particular way he killed his victims. The Oxford English dictionary defines the term “strangle” as follows: “Squeeze or constrict the neck of (a person or animal), especially so as to cause death: the victim was strangled with a scarf.” The Merriam-Webster dictionary defines the term “strangle” this way: “To kill a person (or animal) by squeezing the throat.” But, under the 2012 amendments to Maine’s aggravated assault statute, “strangulation” is defined to include conduct that does not necessarily produce a substantial risk of death, or any actual risk of death at all. When it comes to impeding a person’s breathing or circulation by applying pressure to the person’s neck, there is no need for the particular conduct to actually manifest an extreme indifference to the value of human life. Instead, the conduct simply manifests an extreme indifference to the value of human life by statutory definition. The scheme appears to run as follows: (1) a person is guilty of aggravated assault if he intentionally, knowingly or recklessly causes bodily injury to another under circumstances manifesting an extreme indifference to the value of human life; (2) strangulation is a circumstance that manifests an extreme indifference to the value of human life; (3) strangulation means impeding (however slightly?) the breathing or circulation of another person by applying pressure on the person’s neck or throat; (4) therefore, intentionally, knowingly or recklessly causing bodily injury to another person, in circumstances involving the impeding of breathing or circulation by applying pressure on the person’s neck or throat, is aggravated assault.

In a recent Portland Press Herald article on the strangulation amendments and their effect on aggravated assault prosecutions http://www.pressherald.com/2014/09/01/charges-go-way-up-in-maine-after-law-change-on-strangling/, a member of Maine’s Criminal Law Advisory Committee was referenced stating that a judge or jury must still conclude that strangulation in a given case represents indifference to human life. While this is true, the statement is misleading, because indifference to human life now appears to be operationally defined, by statute, as manifest in all cases involving strangulation, and because strangulation has been redefined to include even the slightest and most transient impeding of breathing or circulation through pressure applied to the throat or neck  (Maybe the Legislature really only meant to specifically identify choking as a circumstance that could be taken, in a given case, to manifest extreme indifference to the value of human life, but if that was their intention they did a poor job expressing it).

Why did the Maine Legislature distort the meaning of the terms “strangulation” and “circumstances manifesting extreme indifference to the value of human life” when there were other ways to achieve the same result without doing violence to the English language or the Maine Criminal Code? For instance, the Legislature could have specifically included within the term “dangerous weapon,” human hands or any other object or materials used to impede the breathing or blood circulation of another person by applying pressure on the person’s throat or neck. Alternatively, the Legislature could have added a subsection to the aggravated assault statute, defining aggravated assault as intentionally, knowingly or recklessly causing bodily injury to another in circumstances involving the impeding of the other person’s breathing or blood circulation through pressure applied to the person’s throat or neck. What was gained by pursuing a path of indirection instead?

One argument for punishing the choking of another person as aggravated assault is that, in the context of domestic violence, it tends to be part of an escalating pattern that leads to homicide in a significant number of cases. It can also be extraordinarily terrifying to the victim.  And placing a person weaker than yourself in fear of death by asphyxiation is deeply sick and reprehensible.  Those are perfectly valid arguments for singling-out the conduct for increased punishment. But the particular way the Legislature chose to deal with the behavior creates the impression of an epidemic in which, in 2013, upwards of 170 men in this State were prosecuted for manifesting extreme indifference to the value of human life by strangling upwards of 170 women.  Wow, that’s a lot of strangulation and extreme indifference to the value of human life in a year when there were 25 non-negligent homicides altogether in the State of Maine!  Students of political theater might recognize this as an example of how to create a crisis by defining a frightening term down.

Update 11/13/15.

On November 12, 2015, the Law Court weighed in with its interpretation of “strangulation” as a “circumstance[] manifesting extreme indifference to the value of human life” in the context of one person choking another.  As I suspected from a plain reading of the language distortions introduced to the aggravated assault statute by the 2012 amendments,  any force sufficient to impede breathing constitutes “strangulation,” under section 208.  Because section 208 specifically defines “strangulation” as a circumstance manifesting extreme indifference to the value of human life, any application of force to the throat or neck of another person that impedes that person’s breathing (at all) and causes bodily injury (hurts) is by definition aggravated assault, punishable by up to 10 years in prison.

Here is the Law Court’s statement on the matter:

Section 208(1)(C) plainly defines strangulation as an application of force to a person’s throat or neck that is sufficient to impede the person’s breathing or circulation. The statute includes strangulation as a circumstance that manifests extreme indifference to the value of human life. Here, the victim’s testimony supports the court’s finding that Saucier applied enough force to the victim’s neck to impede her breathing, and that evidence is sufficient to support Saucier’s conviction for aggravated assault. State v. Saucier, 2015 ME 144, __ A.3d __.     http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me144sa.pdf

If anyone is surprised by this interpretation, I have to wonder why.  So, is that what was intended all along?  You bet.  See above.



Web Hosting Provided by Maine Hosting Solutions