When is an assault not an assault?

When it’s a strangulation. Yes, as of 2008, the Connecticut legislature has created the crime of “Strangulation” (I’d link to it, but it isn’t up on the website yet).

Is it redundant? What does it really mean? Let’s find out! The first step, of course, is to conduct an elements analysis. There are two degrees of strangulation, both felonies. Let’s start with Strangulation in the First Degree:

(a) A person is guilty of strangulation in the first degree when such person commits strangulation in the second degree as provided in section 53a-64bb and (1) in the commission of such offense, such person (A) uses or attempts to use a dangerous instrument, or (B) causes serious physical injury to such other person, or (2) such person has previously been convicted of a violation of this section or section 53a-64bb.

Huh? Okay, let’s look at Strangulation in the Second Degree (53a-64bb):

(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.

Here’s what I don’t understand. How do you commit strangulation in the second degree without using a “dangerous instrument”? Especially in light of the fact that hands (or fists or feet or limbs) may be “dangerous instruments”:

defendant contends dangerous instrument, as defined by General Statutes § 53a-3 (7), cannot include a body part . . . . We conclude that an ordinary object may be a dangerous instrument. Therefore, each case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. . . . The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury

State v. McColl, 74 Conn. App. 545, 553-54, cert. denied, 262 Conn. 953 (2003). So, what then, is the difference between 53a-64aa(a)(1)(A) and 53a-64bb? Is there?

Let’s move on from strangulation for a second and look at its step-brother Assault. The Assault statutes are strikingly similar to the strangulation statutes. Here’s Assault in the Second Degree:

(a) A person is guilty of assault in the second degree when: (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm

And here’s Assault in the Third Degree:

(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person

So why these separate statutes? What does strangulation give you that assault doesn’t? Couldn’t strangulation in the first degree fit within assault in the second degree? Or is it that with strangulation, there is no real injury? When you choke someone, is there any quantifiable injury that can be demonstrated and testified to? So if we assume that the difference is that there is no demonstrable injury, then it gets even curioser when you look at the penalties:

Strangulation in the first degree is a C felony, whereas Assault in the 2nd degree is a D felony and strangulation in the second degree is a D felony whereas assault in the third degree is an A misdemeanor. So it is conceivable that, on the backs of domestic violence, the legislature deemed it necessary to punish choking more harshly than regular, plain ole assault. Ridiculous, but conceivable.

Then explain this subsection of both strangulation statutes:

(b) No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information. For the purposes of this section, “unlawful restraint” means a violation of section 53a-95 or 53a-96, and “assault” means a violation of section 53a-59, 53a-59a, 53a-59b, 53a-59c, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-61 or 53a-61a.

What. the. hell. does. that. mean? No, really. What does it mean? It means that the state can argue to the jury that the defendant, who choked the victim causing no long-term injury (serious or otherwise) is either guilty of assault or unlawful restraint or strangulation, but not all three. Huh?

The language also doesn’t necessarily lead to a merging of the convictions, as with some other offenses, but explicitly states that one cannot be found guilty of all three, but can be charged with and prosecuted for all three. Maybe it’s late and I’m stupid, but I just don’t get it.

This is what happens when the legislature ignores statutes already on the books and creates new ones specifically in response to individual cases or circumstances *cough*homeinvasion*cough*. It leads to silly results like this. Why can’t anyone who chokes someone be prosecuted for assault? I submit they can.

Does anyone know of any challenges to this statute? Any arguments that have been successful?