Victims advocates thought they had secured two major victories in West Virginia during the 2015 legislative session, until last week.
On Wednesday, Gov. Earl Ray Tomblin vetoed one bill that was meant to protect victims of domestic violence and one meant to combat human trafficking.
Joyce Yedlosky of the West Virginia Coalition Against Domestic Violence was disappointed, but already thinking about next session.
“We thought maybe we were going to save some lives,” she said.
HB2240, sponsored by Delegate Brian Kurcaba, R- Monongalia, would have made it a felony for a sexual assault or domestic violence perpetrator to strangle a victim. HB2161, sponsored by Delegate Barbara Fleischauer, D-Monongalia, would have created a commission on the prevention of human trafficking and would have aligned state human trafficking law with a national model that advocates developed, the Uniform Act on Prevention and Remedies for Human Trafficking.
In his veto message for the strangulation law, Tomblin said that the legislation is duplicative because “there are numerous criminal offenses in the West Virginia Code that already prohibit and punish strangulation.”
“I don’t understand why they thought it was already covered, because law enforcement and the domestic violence community did not,” she said.
Yedlosky said that lawmakers had similar concerns during the session. That’s why they brought law enforcement and advocates to the Capitol to explain why the current law is not sufficient.
“We didn’t get that opportunity with the governor’s office,” she said.
Tomblin’s veto cites state code for malicious wounding, a felony; assault and battery, misdemeanors, and domestic assault and domestic battery, misdemeanors.
Yedlosky said that strangulation is such a violent crime, and can be so lethal, that they wanted it to be considered a felony. History of strangulation is one of the leading indicators that a domestic violence perpetrator will kill the victim, she said.
“It is possible to almost kill someone with very little pressure and injury,” she said. “With the amount of pressure it takes for a handshake, you can block someone’s blood flow and within seconds they can die from it.”
But police often have to rule out malicious wounding, she said, because the code requires officers to look for “bodily injury.”
“When you look at them, the only thing you might see is bruising on the neck,” she said. “Bruising is a lower level of injury. The charge would be based on bruising.”
Officers also have to consider “intent to maim, disfigure, disable or kill.”
“That makes it hard to charge as a felony sometimes,” she said. “Sometimes offenders will say I wasn’t intending to kill them. I was just trying to control them.”
Cpl. Tony Craigo, an officer who specializes in domestic violence for the Putnam County Sheriff’s Department, estimated that 50 percent of strangling cases don’t show visible injury.
“With a shooting, you can see a gunshot wound, but somebody is strangled to within seconds of death, there may be nothing but a slight red mark, if that, on their neck,” he said.
As a result, officers are having to charge domestic abusers who strangle their victims with misdemeanors. He said the punishment isn’t severe enough for such a lethal crime.
“It’s kind of the ultimate control,” he said. “The abuser takes the person to the edge of death and decides whether they live or not by how many seconds they hold on to their neck.”
Advocates for the bill had counted 39 states that had addressed strangulation as of the start of 2015, Craigo said.
“We were wanting to come up to par with other states in the country,” he said.
In addition to creating a task force to assess the current response to human trafficking in the state and educate the public, the human trafficking bill would have added new criminal penalties for businesses and would have given victims the opportunity to expunge their records. It also would have changed the section of current law that says perpetrators must have two or more victims for the crime to count as human trafficking.
In his veto message for the bill, Tomblin wrote that he was vetoing the bill because the title, “Adopting the Uniform Act on Prevention of and Remedies for Human Trafficking,” was defective. He cited the state’s constitution, which requires that bill titles be reflective of their contents.
“The bill’s title does not provide notice that wiretaps are permitted in suspected cases of human trafficking, that business entities are now subject to criminal penalties; and that there is a statute of limitation for claims, among other things,” he wrote. “As a result, the title fails to provide adequate notice of the bill’s contents, including its criminal penalties.”
He also questioned why the bill did not have a fiscal note to pay for the commission’s expenses.
Fleischauer said she was disappointed by the effect the veto would have on victims, although she understood the governor’s reasoning for the title change request.
She and Yedlosky also said the West Virginia Coalition Against Domestic Violence had hoped to use grant funds for the commission.
“It’s unfortunate that nobody contacted the lead sponsor [but] it wouldn’t have made any difference in the long run, because there’s a mistake in the title, but I don’t think the real issue was the funding issue,” Fleischauer said.
Tomblin wrote that he hoped the Legislature would resolve the issues in the trafficking bill and revisit it in the 2016 session.
Reach Erin Beck at firstname.lastname@example.org, 304-348-5163 or follow @erinbeckwv on Twitter.
Charleston Gazette: Victim advocates, police disappointed by Tomblin vetoes