Strangulation as a Felony Offense: A New Penalty Under W. Va. Code § 61-2-9D

In March of 2016, the West Virginia Legislature passed a law adding a new section to W. Va. Code § 61-2-1 et al. to specifically criminalize strangulation as a felony offense. Such offenses would have previously been charged under the West Virginia Code's provisions for domestic battery, malicious wounding, or attempted murder. The law's passage was the culmination of efforts by the legislature during the prior year. The primary motivation to punish this behavior originated in medical studies which revealed a substantially higher likelihood of homicide occurring in domestic relationships when strangulation previously occurred. Upon taking effect in June of 2016, West Virginia joined the majority of states which punish strangulation as a separate offense. Although the language used in the West Virginia Code was similar to many other jurisdictions, the West Virginia Supreme Court of Appeals has yet to interpret the provision's language requiring loss of consciousness or bodily injury as the threshold for conviction. As a result, how the law is applied varies widely among prosecutors, lower courts, and law enforcement. In addition, the rate of charges being filed under the new statute varied considerably, with some counties filing none and others doing so on dozens of occasions. The purpose of this article is to compare the approaches of other jurisdictions on what constitutes "bodily injury" and also proposals for future interpretations and revisions to the law.