Chapter 1

Our recommendations

1.14We have no doubt that strangulation often constitutes very serious criminal behaviour and that its impact has, until recently, been underestimated.

1.15We have also found that there is a particular problem charging the many instances of strangulation that do not result in visible injury. Those instances may result in significant internal or psychological signs and symptoms that often go undocumented. The current framework of serious violent crimes in Part 8 of the Crimes Act 1961 does not cater well to prosecutions for this type of behaviour because the framework requires proof of harm or of a particular intention on the part of the perpetrator, which cannot be easily determined. As a consequence, this offending tends to be charged as “male assaults female”, which does not require proof of injury or a special intention but carries a maximum penalty of only two years. We do not think that charge reflects an appropriate level of accountability for many cases of strangulation.

1.16While other jurisdictions have enacted a specific strangulation offence to address this problem and raise the profile of strangulation in family violence circumstances, the Law Commission has generally been sceptical of specific offences that can be adequately covered by other generic offences because they can result in inconsistent charging practice and inappropriate under-charging.4 The recommendations previously made around the Crimes Act’s scheme of offences against the person were, however, not adopted, and the Crimes Act continues to have a range of offences from the generic to the specific.5
1.17The general principle in a code-type statute, like the Crimes Act, is that most offences should be generic (for example, homicide or assault) to avoid a slide into a chaotic plethora of specific offences that the instrument was designed to avoid. Nevertheless, in a fast-changing world, new phenomena or understandings may emerge or be identified to warrant the law’s intervention if they are not already adequately catered for. A code-type statute cannot be entirely static. The Legislation Advisory Committee Guidelines indicate that such a new offence can only be justified if it can be shown that:6

1.18Strangulation satisfies those criteria for reform. We consider that a separate strangulation offence will be a more effective criminal sanction than the current suite of offences and will increase awareness of the lethality of strangulation. In these ways, a new offence will also help to increase the safety of victims of family violence.

1.19In addition to a new offence, we recommend that the Sentencing Act 2002 be amended to include strangulation as an aggravating factor. This will emphasise the future risks associated with strangulation, and when strangulation is charged under a generic offence, it may increase the sentence imposed. Finally, we also recommend that the Police make a number of operational changes designed to ensure that strangulation is identified and recorded in such a way that it is apparent in subsequent searches of the records relating to the perpetrators.

4Law Commission Review of Part 8 of the Crimes Act 1961: Crimes against the person (NZLC R111, 2009) at iv.
5Current specific violence offences include “male assaults female”, s 194(2); “acid throwing”, s 199; “assault with a weapon”, s 202C; and “female genital mutilation”, s 204A.
6Legislation Advisory Committee Legislation Advisory Committee Guidelines (2014) at ch 1.