In all but four U.S. States, consent is not a defense to choking someone. The other States and Territories regulate “strangulation” and “suffocation” differently under their Assault, Sexual Assault, and Domestic Violence laws. To “strangle” generally means intentionally impeding the normal breathing or circulation of the blood of someone by applying pressure on the throat or neck. To “suffocate” generally means impeding the normal breathing by blocking the nose or mouth of someone.

In 11 States, erotic choking is legal as long as injury is not caused. Injuries are usually rare in kink activities, with less than 4% of respondents reporting they had been injured during a consent violation in the National Coalition for Sexual Freedom’s Consent Survey (2020).[i] However, a literature review in 2022 found that strangulation/choking during the course of erotic asphyxiation is the most common cause of death involving BDSM acts.[ii] In addition, many injuries caused by choking are not visible, however the damage can mimic those of concussive injury and mild stroke.[iii] Participants’ mental health symptoms (e.g., feeling depressed, anxious, sad, lonely) have also been found to be significantly associated with having been choked.[iv]

Explicit Prior Permission permits affirmative, prior consent to specific acts that don’t risk serious injury.[v] Due to the serious health risks involved, including the risk of death, EPP doesn’t allow for consent to erotic choking. Given the relative risks, EPP is especially important even in states where it might be legal under limited circumstances, and participants would still be legally vulnerable if the unexpected occurred. Recent case law affirms that consent is not a defense to erotic strangulation due to the risk of serious physical injury.[vi]

The following is legal in every State and under Explicit Prior Permission:

Informed consent is essential, so NCSF provides this information about health risks and the law so that people can make their own informed choices. If your scene or relationship is ever legally called into question, under Federal law strangulation and suffocation are illegal:

Federal

Title 18 USC § 113; Assault within Maritime and Territorial JurisdictionEnacted and/or effected: 2013(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:(8) Assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate, by a fine under this title, imprisonment for not more than 10 years, or both.(b) Definitions –In this section—(4) the term “strangling” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim; and(5) the term “suffocating” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.

Under the Uniform Code of Military Justice, choking is potentially illegal depending on the context of all the circumstances, including whether there was consent given for the specific act:

U.S. Military

U.C.M.J. H.R. 5515; National Defense Authorization ActEnacted and/or effected: 2019(B) commits an offense under this chapter against any property, including an animal;(3) with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person, violates a protection order;(4) with intent to commit a violent offense against a spouse, an intimate partner, or an immediate family member of that person, violates a protection order; or(5) assaults a spouse, an intimate partner, or an immediate family member of that person by strangling or suffocating;shall be punished as a court-martial may direct.’

State by State Guide

Consent is a defense in only 4 States and Guam for strangulation and suffocation. The following is a breakdown of how strangulation laws are applied in States where consent is not a defense. (Many of the strangulation laws can be accessed at the Family Justice Center.)

Illegal

Arkansas

Colville Confederated Tribes

Delaware

Georgia

Idaho

Massachusetts

Michigan

Minnesota (if you’re a family or household member)

Mississippi

Montana

Nebraska

Nevada

New Hampshire

New York

North Dakota

Ohio (enacted April 2023)

Oregon

Pennsylvania

Vermont

U.S. Military Code

Washington

Wisconsin

Illegal if harm/physical injury is caused

Arizona (also “apprehension of physical injury”)

California

Colorado

Hawaii (even non-visible injury)

Illinois

Maine

Missouri (if you’re a family or household member)

North Carolina

Texas

Utah

Wyoming

Illegal if choked to unconsciousness

Alaska

Illegal if choked during Sexual Assault

Maryland

Illegal if choked during Domestic Violence

Colorado

Louisiana

New Jersey

U.S. Virgin Islands

Illegal if choked in a “rude or angry manner”

Indiana

Kansas

Illegal if choked with intent to harm

Alabama

Iowa

New Mexico

Oklahoma

Rhode Island

South Dakota

Tennessee

Illegal if choked nonconsensually

Florida

Kentucky

Virginia

West Virginia

Guam

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[i] Bowling, J., Wright, S., Stambaugh, R. J., Gioia, D., & Cramer, R. (2020). Consent survey report. National Coalition for Sexual Freedom. https://ncsfreedom.org/resources/research/

[ii] Schori, A., Jackowski, C., & Schön, C. A. (2022). How safe is BDSM? A literature review on fatal outcome in BDSM play. International journal of legal medicine, 136(1), 287–295. https://doi.org/10.1007/s00414-021-02674-0

[iii] Bramlett, H. M., & Dietrich, W. D. (2004). Pathophysiology of cerebral ischemia and brain trauma: similarities and differences. Journal of Cerebral Blood Flow & Metabolism, 24(2), 133–150.

[iv] Herbenick D, Patterson C, Beckmeyer J, Gonzalez YRR, Luetke M, Guerra-Reyes L, Eastman-Mueller H, Valdivia DS, Rosenberg M. Diverse Sexual Behaviors in Undergraduate Students: Findings From a Campus Probability Survey. J Sex Med. 2021 Jun;18(6):1024-1041. doi: 10.1016/j.jsxm.2021.03.006. Epub 2021 May 19. PMID: 34020921. 

[v] American Law Institute. (2022). Model penal code on sexual assault : Tentative Draft No. 5. and explanatory notes : Section 213.10. Affirmative Defense of Explicit Prior Permission was adopted at the 2021 annual meeting of the American Law Institute at Washington, D.C., June, 2021. Philadelphia, Pa. :The Institute, 462-480.

[vi] State of Oregon v. Sunny Sky Stone 3/22/2023