A new criminal offense called “assault by strangulation or suffocation” went into effect in Michigan on April 1, 2013. This statute imposes stiff penalties for violent attacks intended to obstruct the victim’s ability to breath. A conviction for this offense can result in serious fines, a lengthy probation and even prison time.
An individual is guilty of assault by suffocation or strangulation, contrary to MCL 750.84(1)(b), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 17.35):
- First, that the individual committed a battery on another person. A battery is a forceful, violent, or offensive touching of another person or something closely connected with that other person.
- Second, that the touching must have been intended by the individual, that is, not accidental, and it must have been against the other person’s will. It does not matter whether the touching caused an injury.
- Third, that the battery was committed by strangulation or suffocation. Strangulation or suffocation means “intentionally impeding normal circulation of the blood or breathing by applying pressure on the throat or neck or by blocking the nose or mouth.” MCL 750.84(2).
Assault by strangulation and suffocation is a felony conviction punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. In addition, a person convicted of assault by strangulation or suffocation may also be “charged with, convicted of, or punished for any other violation of law arising out of the same conduct as the violation of this [offense]” such as domestic violence or assault with a dangerous weapon. MCL 750.84(3).
In People v Whyde, unpublished per curiam opinion of the Court of Appeals decided December 28, 2017 (Docket No. 334120), the Michigan Court of Appeals made clear that a defendant can be convicted of assault by strangulation or suffocation as well as an even more serious offense at the same time. In that case, the defendant was convicted of assault with intent to murder (a life offense) but acquitted of assault by suffocation or strangulation, so he argued that the trial court issued an inconsistent verdict because he was found not guilty of a lesser included offense of assault with intent to murder. Generally, if a person is found guilty of a lesser included offense, then it should not be possible to be found guilty of the greater offense. However, the Michigan Court of Appeals determined that assault by strangulation is not a lesser included offense of assault with intent to murder (unlike assault with intent to do great bodily harm less than murder) because assault with intent to murder does not specifically require strangulation. Since each crime contains an element that the other does not have, a defendant can be convicted of both.
However, the Michigan Court of Appeals determined that a person cannot be convicted of both assault by strangulation or suffocation AND assault with intent to do great bodily harm less than murder (“AWIGBH”) arising from the same conduct. The statute of assault by strangulation or suffocation is actually an amendment to the AWIGBH statute (MCL 750.84) that makes a person guilty of a felony if he or she commits either offense. Both charges are punishable by a fine up to $5,000.00 or up to 10 years in prison, or both. The Michigan Legislature did not make clear that they intended multiple punishments for the same conduct so a conviction for both offenses would violate the prohibition against double jeopardy. People v Barber, __ Mich App __; __ NW2d __ (2020)(Docket No. 339452).
A person accused of assault by suffocation or strangulation may be able to claim that he was acting in self-defense. In fact, the burden is on the prosecutor to show that the defendant was NOT acting in self-defense. If a person can show that he was being attacked or in imminent danger of being attacked where he could be serious harmed or killed, he could demonstrate that it was necessary to use a strangulation attack to incapacitate the aggressor. Whether or not this can be established depends on the facts of the case, witness testimony and their perceived credibility to the jury. Make no mistake that assault by strangulation and suffocation is treated very seriously by judges and may result in a lengthy incarceration. In these situations, you need a skilled criminal defense lawyer in your corner to protect your rights and hold the prosecutor to their standard of proof.
If you or a loved one have been charged with assault by strangulation or suffocation and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.