Bill to make crime of suffocation a felony advances

March 7, 2019

An inconsistency in a law that prescribes a felony penalty for the crime strangulation but not for suffocation is on its way to being remedied.

The inconsistency affects crimes of domestic violence victims, among others, said its sponsor, Sen. Wendy DeBoer of Bennington.

With current law, if a victim is shown to have been strangled, the person committing the crime can be charged with a felony. If the facts show the victim was suffocated -- the victim’s ability to breathe cut off -- that’s a misdemeanor.

The bill (LB141) would allow strangulation and suffocation to be treated the same. In the category of assaults, felonies are considered to be serious injuries or injuries with a dangerous instrument. Misdemeanors are charged for menacing threats or a lesser injury.

Covering a person’s mouth and nose, with a pillow for example, or sitting on a person’s chest so that they can’t get air, is not now covered as a serious assault, DeBoer said.

Blocking a person’s airways leaves little injury right up until the point of death, DeBoer said, so nearly killing someone by suffocation would be only a misdemeanor. With the bill, suffocation would be a crime even if there is no visible injury.

Omaha Sen. Ernie Chambers amended the bill to say the person committing the crime of suffocation must do so knowingly and intentionally, rather than knowingly or intentionally. A person can put a hand over someone’s nose and mouth, without intent to harm.

“If it’s done forcefully,” Chambers said, “then you draw the meaning from the circumstances, no matter what a person says his or her intent is.”

The bill advanced on a 45-0 vote.