A person commits assault who intentionally or recklessly causes bodily injury or knowingly causes another person to reasonably fear imminent bodily injury. These crimes are Class A misdemeanors punishable by up to 11 months and 29 days in jail. Another specie of assault is when a person causes physical contact that a reasonable person would regard as extremely offensive or provocative. For instance, knocking someone’s hat off their head. That would be a class B misdemeanor punishable us to six months in jail.
Aggravated assault is an assault that causes serious bodily injury or the death of another person or involve the use or display of a deadly weapon or involved strangulation or attempted strangulation. In most cases aggravated assault is a Class C felony punishable by 3 to 6 years in prison. Under Tennessee’s new Truth in Sentencing statutes, a conviction for aggravated assault is non-probatable. That means no probation, no community corrections, no judicial diversion or split confinement. Further, there is no parole. That means the defendant must serve 100% of the sentence, day for day, without being eligible for release after the service of a lesser percentage of the sentence. A three year sentence would mean 3 X 365 days in prison. The stakes are high for the criminal defense lawyer and his client.
In recent years, criminal defense lawyers have been seeing more and more warrants alleging strangulation. The statute defines strangulation as intentionally impeding the normal breathing or circulation of the blood by applying pressure to the throat or neck or by blocking the nose and mouth of another person, regardless of whether that conduct results in any visible injury. Where this shows up is in domestic assault cases. Read the aggravated assault statute.
No visible injury is necessary. In other words, no proof is needed beyond a naked allegation. It is easy to see how an unscrupulous divorce lawyer might exploit this language. The lawyer sends the Wife to get a restraining order alleging domestic violence. The Husband is put out of the house. The unscrupulous divorce lawyer advises the Husband’s lawyer that the Wife reports that husband put his hands around wife’s neck. Husband seeks advice from a criminal defense lawyer. The criminal defense lawyer advises the husband that an allegation of strangulation and a conviction would mean three solid years behind bars.
Effective July 1, 2023, TCA 39-13-102 had been amended to require that a man convicted of domestic assault involving even attempted strangulation serve at least 30 days of lockup in addition to any probation. Law enforcement is encouraging women to claim attempted strangulation even after denial: “Are you sure he didn’t try to strangle you?” Read Public Chapter 440.
Remember, no proof is needed. Believe All Women. No photos. No audio recordings. Just the sworn testimony of the Wife. This is a problem for criminal defense attorneys. According to a recent YouGov Poll conducted near the end of the Depp-Heard trial, 19% of the general public ALWAYS believes a woman when she publicly accuses a man of committing domestic violence. Twenty-five percent (25%) of women always believe a woman. And 33% of Biden voters always believe the woman, as opposed to 10% of Trump voters.