In October, Governor Wolf signed a new bill into law that makes non-lethal choking a form of assault. Prior to the introduction of this bill, no criminal law specifically addressed the act of intentionally interfering with a person’s breathing. The new law could have significant repercussions for those accused of domestic violence, so if you have been charged with this crime, it is critical to contact an experienced criminal defense attorney who can help you formulate a defense.
Elements of the Offense
Aimed at combatting domestic violence across the state, the new law allows prosecutors to charge individuals with assault even when there is no physical evidence of the injury to support an allegation of choking. All that is required to convict a person of committing the act of strangulation is to establish that he or she knowingly or intentionally impeded the breathing or circulation of the blood of another person by:
- Applying pressure to the throat or neck; or
- Blocking the nose and mouth.
Because the infliction of a physical injury is not an element of the offense, the lack of injury is not considered a defense to this charge.
How the Offense Will be Charged
Generally, this offense will be charged as a second degree misdemeanor although it can be charged as a second degree felony if committed:
- Against a family or household member;
- By a caretaker against a care-dependent person; or
- In conjunction with sexual violence, stalking, or human trafficking.
The offense can be upgraded to a first degree felony if, at the time the act was allegedly committed, the defendant:
- Was subject to an order of protection;
- Used an instrument of crime; or
- Had previously been convicted of a similar offense.
For the purposes of the statute, a care-dependent person is defined as an adult who, due to physical or mental impairment, requires assistance to meet his or her needs. To satisfy the definition of caretaker, a person must be an owner, operator, manager or employee of:
- A nursing home or assisted living facility;
- A community residential facility;
- An adult daily living center;
- A home health service provider; or
- A licensed health care facility.
Alternatively, a person will be considered a caretaker if he or she:
- Provides care to a dependent person in a care facility;
- Has an obligation to care for a person in exchange for monetary compensation;
- Is an adult who resides with a dependent person and has a legal duty to provide care or has voluntarily assumed the obligation because of a familial relationship; or
- Is an adult who, although he or she does not live with the individual, has a legal duty to provide care for a dependent person.
Finally, defendants charged with this crime are permitted to raise the affirmative defense that the accuser consented to the act.
Contact us Today to Discover how an Experienced Philadelphia Criminal Defense Attorney can Help
If you live in Philadelphia and have been charged with assault, please contact van der Veen, Hartshorn and Levin at (215) 486-0123 to schedule a free consultation with an experienced criminal defense attorney who can explain your legal options.