By Sahar Adatia and Jimmy Singh
The NSW Government has announced that it will tighten domestic violence laws with the introduction of a new offence of ‘strangulation’. This is being initiated in a bid to make the offence of strangulation easier to prove and to reduce domestic murders.
On Tuesday 4 September, NSW Attorney General Mark Speakman announced the tougher laws on strangulation as part of a reform package that will reverberate a deep-seated message that there will be no tolerance when it comes to domestic violence.
The announcement arrives as a collection of reforms to the state’s Apprehended Domestic Violence Orders (ADVOs) aim to boost domestic violence victim protection. As part of this, women will be able to apply for indefinite ADVOs in the most severe cases.
For an outline of the law and penalties on breaching AVOs, see our page on breach of AVO.
According to Mr Speakman, given the shocking tide of domestic murders, reducing the number of domestic violence cases “is one of the Premier’s top priorities.”
As a result, in the coming weeks, the NSW Liberals and Nationals will be presenting the legislation to parliament.
Should the legislation pass, Mr Speakman has advised that the reforms will “provide better outcomes for victims, make perpetrators more accountable and help reduce domestic violence reoffending.”
Strangulation in the Context of Domestic Violence
Strangulation or choking is one of the most common and fatal forms of domestic violence. It has been described as the “ultimate form of power and control”.
Strangulation is recognised as a key indicator of further destruction in domestic violence cases and an offence that is highly predictive of future homicide. If strangulation is deemed to have taken place in an incident of domestic violence, the victim is thought to be a higher risk of further harm. Often this harm escalates and can result in homicide.
For example, according to recommendations of the NSW Domestic Violence Death Review Team Report 2015-2017, it was found that suffocation was the second highest cause of death in female domestic violence homicides, which involved relatives or kin. Suffocation was also the basis of fatality in 14.85% of female domestic violence homicides where intimate partners were involved.
This demonstrates the link between strangulation and domestic homicide, and highlights the significance of responding effectively to this particular form of violence.
The Severity of Strangulation
There are already two strangulation offences in criminal law classified as assault charges NSW. Of the over 600 prosecutions since 2014, less than half followed with a conviction because the offence is hard to prove.
Supporting the legislation as the Minister for the Prevention of Domestic Violence, Pru Goward, expressed concerns around this, saying that strangulation is a warning sign of far more grave domestic violence assaults. In recognising that attacks of strangulation can be a precursor to tragedy, she stated that, in fact, one-in-four domestic murders have been previously linked to strangulation.
“To treat strangulation seriously, because it’s such a strong indicator of a likelihood of fatal attack, it’s been important to reform the laws regarding strangulation, and that’s what we’ve done,” she said.
According to Mr Speakman, the existing legislation makes strangulation difficult to prove.
Why the Current Strangulation Charge is Difficult to Prove in NSW
You can expect to face a sentence of up to 10 years imprisonment for committing the current offence of choking, suffocating or strangulating someone under section 37 of the Crimes Act 1900 (NSW).
Our justice system requires the police to prove an allegation beyond a reasonable doubt in court.
The person accused of a crime is not required to prove his/her innocence, which reflects the fundamental principle of the presumption of innocence until proven guilty.
If the police are unable to prove each of the essential elements of what makes up the alleged charge/offence, then the charge is to be dismissed.
The police generally have a difficult time proving an attempt to strangulate, choke or suffocate charge under the current section 37 offence because, to successfully prove a strangulation offence, the police must prove each of the following elements:
- You intentionally choked, suffocated or strangled the alleged victim (or attempted to); and
- While doing that, at the time, you turned your mind to the possibility of rendering the alleged victim unconscious, insensible or incapable of resisting; and
- As a result, the alleged victim was rendered unconscious, insensible or incapable of resisting
The first two of those elements are easier to prove with evidence.
Often, the third element is difficult to establish on a practical level in court. This also reflects the writer’s experience as a criminal defence lawyer, having appeared in court for many cases of this nature over the years.
Often, during an attempted strangulation by an accused, the victim is able to resist and in fact makes attempts to resist the strangulation.
Alternatively, on other occasions, the victim begins to go into a state of unconsciousness but is not technically “rendered unconscious” at the time of the choking/strangulation. Going into a state of
unconsciousness is insufficient to prove the third element of s37.
In those circumstances, the prosecution will have a hard time proving the third element of the charge.
For these reasons, the lesser serious charge of common assault is often used to prosecute the accused person. This is because the charge of common assault doesn’t require the prosecution to prove that the victim was rendered unconscious.
Common assault nsw carries a much lesser maximum penalty of imprisonment of up to 2 years compared to the maximum 10 years for the offence of strangulation under s37.
The prosecution can successfully prosecute an offender for common assault if it establishes, beyond reasonable doubt, that the offender behaved in such a way:
- With an intention to either cause injury or fear in the victim, or
- Turned his/her mind to the likelihood of causing fear or injury to the victim yet ignored that risk and did it anyway.
Strangulating a partner in a domestic violence context, which could lead to death. The current strangulation laws appear therefore to have trivial consequences to an offender who will likely end up facing a much lesser serious charge such as common assault in this context. Arguably, it doesn’t sufficiently (nor effectively) protect victims of domestic violence. Nor does it sufficiently deter potential offender of domestic violence.
Why the New Strangulation Charge will be Easier to Prove in NSW
In contrast, for an offence of strangulation under the new law, the only proof needed will be intention of choking, strangling or suffocating without consent.
This simpler strangulation offence will also carry with it a maximum sentence of up to five years imprisonment, existing alongside current offences of strangulation within the Crimes Act 1900 (NSW).
In 2014, a new offence of “choking, suffocation and strangulation” was introduced to this Act in the hope of addressing the problem of 70% of domestic violence assaults concerning strangulation in NSW being charged as common assault. However, arguably that new offence did not directly tackle the issue, likely due to the difficulty in proving all of the essentials of the offence.
Hope for Domestic Violence Victims under the New Strangulation Laws
According to Mr Speakman, under the new legislation, “the new offence will resolve the current situation, whereby many strangulation incidents are being prosecuted under lesser charges such as common assault, for which the maximum sentence is two years’ imprisonment.”
“We are hopeful this will result in increased number of prosecutions but more importantly point out a red flag for future domestic violence related offences.”
This has been met with support from Minster Goward, who stated that “strangulation is a red flag for domestic homicide, so it’s important NSW has a specific offence formulated to capture domestic violence strangulation.”
“These reforms are another example of how this government is tougher than ever on the criminals who commit acts of domestic and family violence.”
Mr Speakman hopes that before the year ends the new strangulation offence will come into play and the ADVO by the middle of next year.