Chapter 4
​Current problems prosecuting strangulation

A lack of accountability for the perpetrators of strangulation

4.20One of the purposes of the criminal law is to hold offenders accountable for their criminal acts in the sense that there should be consequences for behaviour that harms others. In a modern democratic society, one conception of criminal accountability is the Kantian notion that a legal system generates reciprocal political obligations upon citizens to obey its norms.94 Offending upsets the moral equilibrium and appropriate accountability restores it. Consequently, accountability must be proportionate to the seriousness of the offence and the culpability of the offender.

4.21In Chapter 3, we described the way that strangulation in family violence circumstances is currently prosecuted. Through that examination, we have identified a number of impediments to holding perpetrators of strangulation adequately accountable. First, there can be difficulty in proving the elements of the more serious violent offences when the offending behaviour is strangulation. Second, even when the elements of the offence can be made out, Police sometimes do not prosecute or, if they do, only lay a relatively minor charge. We examine each of these issues in turn.

Difficulty proving the elements of the offence

Proving assault

4.22If the offence charged is “common assault” or “male assaults female”, the prosecution must prove that an assault occurred.95 “Assault” means intentionally applying force to the person of another.96 Assault in the case of strangulation is the intentional application of force to the neck. If the defendant denies the assault, the prosecution must provide evidence that proves force was intentionally applied to the neck. Sufficient evidence of strangulation can be difficult to obtain. A statement from the victim will be evidence but, by itself, may not be enough to prove strangulation beyond reasonable doubt and, in some cases, a victim may have no memory of the assault or be unwilling to give evidence. Evidence from a third-party witness would assist, but many instances of strangulation are not witnessed by anyone else. In most cases, physical or medical evidence will be required to prove an assault by strangulation.

4.23In the case of other significant assaults, there will be visible signs such as bruising, swelling or abrasions. The Police will photograph the signs and place the photos on the record as evidence. That will also occur when strangulation results in visible signs on the neck. However, as we describe in Chapter 2, it is very common for there to be no visible signs, even when the strangulation has been serious. When that is the case and testimony from the victim or a witness is unavailable or insufficient, a medical examination will be required to document less obvious external physical signs (such as petechiae), internal signs and symptoms (such as internal bruising or symptoms of a loss of consciousness), or psychiatric or psychological symptoms (such as amnesia or confusion).

4.24A medical examination documenting all the signs and symptoms can be compelling evidence that strangulation occurred, prompting the defendant to plead guilty to the strangulation, even when there are few visible signs. However, medical examinations are not automatically arranged for victims who report that they have been strangled. In serious cases, the Police may direct a victim to a doctor specialising in family violence cases. However, such specialists are rare, and more usually, the victim will need to obtain her own assessment from her general practitioner, if she has one. It can require fortitude and determination to find a doctor, retell the story and submit to medical examination.

4.25We have been told that doctors who do not specialise in family violence or forensic medicine can be reluctant to become involved in assault cases for a number of reasons. They may feel that they lack the forensic expertise required to assess the patient for the purposes of a prosecution, they may be busy and consider that their priorities are to treat pressing medical issues rather than provide evidence for the justice process, or they may consider that they cannot afford the time required to present evidence to the court.

4.26Issues of this nature were identified in a case examined by the Health and Disability Commissioner (HDC) in 2008.97 In that case, Mrs A’s husband used a tea towel to strangle her after an argument about the use of the dishwasher. Mrs A escaped to her friend’s house and called the Police. The Police received her complaint and advised her to see a doctor for treatment and documentation of her injuries. Mrs A went to two different after-hours clinics with her friend. At each clinic, the doctors on call were reluctant to see her because she did not appear to be an emergency case, she was not enrolled at a contributing clinic and getting involved in a domestic violence prosecution could be very time consuming for the doctors. Eventually, at the insistence of the friend and after a phone call with the Police officer, she was assessed, but the Police officer was concerned at the victim’s experience and laid a complaint with the HDC. The Police officer commented:

Victims of domestic assault are not usually gifted with large amounts of self-confidence. The courage it takes to report an assault of this kind to the Police is considerable. Facing the prospect of further disclosure to a doctor unknown to the victim further taxes any slim reserves of nerve.

4.27The HDC was also concerned and published an opinion for the education of doctors on their obligations when a victim of assault presents for assessment. He said that, at a minimum, patients should expect an initial assessment by a doctor to determine the extent of the injuries, both physical and psychological. If the doctor feels unable to undertake a forensic assessment, the doctor should provide the victim with information about other options in the region for the forensic documentation of injuries.

Proving harm—wounding or injuring

4.28While generally the only element required to be proved in the lower-level violence offences is the intentional application of force, the more serious violence offences also require proof of a particular harm or intention on the part of the perpetrator.98
4.29The harm required to be proved for these more serious offences is generally either a “wound” or an “injury”. Sometimes, strangulation produces harms of these sorts, but often it does not, or the injury is difficult to prove (as we described above). “Wounding” requires a breaking of the skin, generally evidenced by a flow of blood.99 It is rare for strangulation to produce a cut to the skin. “Injuring” is defined in the Crimes Act as “actual bodily harm”.100 It may be internal or external and need not be permanent or dangerous, but it must be more than trifling or transitory.101 It has been held to extend beyond physical injury, so may include psychiatric harm, but does not extend to merely fear, distress or panic.102 It includes rendering a person unconscious.103

4.30The harms of “wounding” and “injury” are not particularly well suited to prosecuting serious strangulation offending due to the difficulty proving injuries that are difficult to see, internal or psychiatric, but also for another reason. The unique harm resulting from strangulation is not the wounding or injury, but rather terror—the psychological impact that occurs when an abuser has limited the victim’s ability to breathe or the blood flow to the brain by squeezing the neck. It is the intimidation, control and coercion that the abuser has as a result of demonstrating to the victim that the abuser could kill the victim in this way. These harms are not captured by the terms “wounding” or “injury”.

Intention

4.31Most crimes require two elements: doing the criminal act and a state of mind that makes the actor at fault or culpable for the action. The nature of the guilty mind required for an offence is described as the “mens rea” element of that offence. For example, an offence might state that the prohibited act must have been done “intentionally”, “recklessly” or “knowingly”. A mens rea element is generally required in respect of every ingredient of the offence104 and must be proved by the prosecution beyond a reasonable doubt.
4.32Some offences do not specify a mens rea element. In those cases, either the mens rea element is established elsewhere (perhaps in the definition of the criminal action—the “actus reus”—or by case law) or the offence is one of strict liability. For example, the offence of “common assault” in the Crimes Act does not specify a mens rea element,105 but section 2 of that Act defines “assault” as involving an intention to apply force.106
4.33A strict liability offence omits a mens rea element, but the defendant may avoid liability by proving an absence of fault on the balance of probabilities. This shifting of the onus of proof is appropriate only in limited circumstances, including offences involving protecting the public from those who voluntarily undertake risk-taking activities, and where the defendant rather than the prosecution is best placed to provide evidence of the mental element.107 For example, many driving offences are strict liability offences. An offence of strangulation does not meet the criteria for a strict liability offence. It has a truly criminal nature, so we must consider the appropriate mens rea element.

4.34There can be two types of mens rea element—the intention to do the actus reus (basic intent) and any other specific intent or motive included in the offence provision (ulterior intent). The more serious violent offences in the Crimes Act generally require an ulterior intent element as well as the basic intent. Examples of the ulterior intent are:

4.35Proving these intention elements of the offence can be particularly difficult in strangulation cases. Intention can be proved by statements made by perpetrators, but such statements are rare. In most cases, intent is inferred from the perpetrator’s actions. As stated in Adams on Criminal Law:113

… intention is rarely found from direct evidence such as a statement by the defendant that he intended to cause really serious harm. … Usually, proof of intention rests on circumstantial evidence, including the overt acts and utterances of the defendant before, at, or after the event, the surrounding circumstances, and the nature of the act itself.

4.36For example, if a wound is inflicted with a knife, it is inferred that the perpetrator intended to wound. That does not, in practice, need to be expressly demonstrated—proof of intent to wound is implicit from the use of a knife. However, in the case of strangulation, often the hands are used, so it is harder to infer that wounding or injury was intended.

4.37Also, the particular intent elements described in these offences are often not relevant in strangulation offences occurring in family violence circumstances. The perpetrator’s intention may be to intimidate, control or coerce the victim rather than to wound, injure or commit another offence. The current offences against the person do not provide for that type of criminal intention.

Other offences

4.38There are a number of other offences that may, in theory, be relevant to strangulation but that do not require proof of harm or ulterior intent. However, these also present problems for prosecutors for various reasons.

Assault with a weapon
4.39The offence of “assault with a weapon” is a reasonably serious offence (it carries a maximum penalty of five years’ imprisonment), yet requires no proof of particular harm or ulterior intent. The offence states:114

Every one is liable to imprisonment for a term not exceeding 5 years who,—

(a) in assaulting any person, uses any thing as a weapon; or

(b) while assaulting any person, has any thing with him or her in circumstances that prima facie show an intention to use it as a weapon.

4.40In theory, it may be possible to think of the hands as “the weapon” in strangulation. There is no definition of “weapon” in the Crimes Act for the purposes of this offence, and the use of the words “any thing” could be read as implying a very broad parliamentary intention for this word.115 While case law has recognised several things to be weapons that are not usually described as such, including a dog and a car,116 it is perhaps stretching the concept too far to think of a part of the body as a “weapon”.117
Disabling
4.41The offence of disabling may also be relevant when a strangulation results in loss of consciousness:118

Every one is liable to imprisonment for a term not exceeding 5 years who, wilfully and without lawful justification or excuse, stupefies or renders unconscious any other person.

4.42This offence is rarely prosecuted, and most of the cases relate to stupefaction of the victim by drugs or alcohol rather than force applied to the neck. In relation to strangulation, it is only relevant to those cases that resulted in a loss of consciousness. However, even in those cases, there are some significant hurdles for the prosecution to overcome. First, as with other kinds of internal injury, a loss of consciousness can be very difficult to prove. Although a doctor trained in forensic medicine may detect signs of lack of blood or oxygen supply to the brain, such as petechiae, it will be a rare case that has the benefit of such a doctor’s assessment.

4.43Second, the prosecution must prove that the perpetrator “wilfully” rendered the victim unconscious.119 While the normal meaning of “wilful” is simply “intentional or deliberate”, it is more complicated in the legal sense. There is conflicting case law as to whether “wilfully” means that there must be an intent to stupefy or render unconscious, or whether it extends to subjective recklessness (meaning that the defendant must have had a conscious appreciation of the risk).120 However, both forms of intent will be impossible to prove in most cases of strangulation, particularly when hands or arms were used rather than a ligature. It will only be experts in forensic medicine or people trained in “choke hold” techniques that know how much pressure must be applied by different techniques and for what duration to produce a lack of consciousness.121
Criminal nuisance
4.44In theory, the offence of criminal nuisance could be charged in respect of strangulation:122

(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he or she knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.

4.45Criminal nuisance is a public welfare offence in Part 7 of the Crimes Act rather than in Part 8—Crimes against the Person. It is punishable by up to one year’s imprisonment. Usually, the “legal duty” referred to means one of the duties tending to the preservation of life described in Part 8 of the Crimes Act. However, it also extends to the common law legal duty not to engage in conduct that it can be foreseen may expose others to harm.123 People who strangle may be breaching that common law duty because strangulation is an inherently dangerous activity.

4.46The culpability targeted by criminal nuisance is risk-taking behaviour rather than behaviour resulting in harm. This could be particularly suitable for strangulation, which is risky but any harm is difficult to prove. However, it carries a maximum penalty of only one year’s imprisonment, less than “male assaults female”, and requires proof that the offender knew the act of strangling would endanger life.

4.47To our knowledge, “criminal nuisance” has never been charged in respect of strangulation. Behaviour charged under this offence includes:

Attempted murder
4.48Finally, the offence of attempted murder may also be relevant to strangulation in family violence circumstances.127 This is obviously a very serious offence, carrying a maximum penalty of 14 years’ imprisonment. As we have described in Chapter 2, the difference between a fatal strangulation and a non-fatal strangulation can be merely the number of seconds of pressure applied to the neck. Therefore, in theory, a non-fatal strangulation could often be a failed attempt to kill. We can find very few reported cases where non-fatal strangulation was charged as attempted murder.128

4.49There are two elements that must be proved for an attempted murder charge—that there was an intention to kill the person and that some act was done for the purpose of achieving that intention. The second element is relatively straightforward. Being a very serious offence, attempted murder is only likely to be charged if the strangulation was particularly serious. Those will be cases in which there is clear evidence of strangulation either from clear marks on the neck, witness statements or a confession of strangulation by the perpetrator.

4.50The ability of the prosecution to prove the first element—the intention to kill the victim—will depend upon the circumstances of the case. If hands are used to strangle, it will be less likely that an intention to kill can be inferred. If, however, the strangulation is merely one aspect of the violence inflicted on the victim during the incident, an intention to kill may be able to be inferred from those other aspects.

4.51However, when strangulation is the sole or main form of violence inflicted on the victim, it may be very difficult for the prosecution to show that the perpetrator intended to kill the victim.

Police charging practiceTop

4.52Although we have shown that there are significant problems in using the current offences in the Crimes Act to prosecute people who strangle in family violence circumstances, Police charging and prosecuting practices are also an impediment to holding the perpetrators of strangulation adequately accountable. Family violence incidents are sometimes recorded on NIA as “no offence disclosed” even when the victim has clearly alleged that strangulation occurred. Strangulation is sometimes not charged at all, even when it appears the elements of a “male assaults female” charge can be proved. More serious strangulations are charged merely as “male assaults female”, even when it is likely that, if the victim was directed to a medical assessment, sufficient evidence of strangulation would be collected. We have encountered suggestions that:

4.53There are many reasons why these practices develop. At the top of the list is the fact that family violence call-outs can be extremely complicated and challenging. The participants may be heavily intoxicated, they may both have inflicted injuries on each other, their stories may not make sense or conflict with each other, and there may be no corroborating evidence and no witnesses. There will sometimes be problems with inadequate Police resources.

4.54The difficulties faced by Police in determining the facts and making decisions in these circumstances should not be underestimated. Training and experience as well as strong protocols and practice standards play a vital role. We have reached the conclusion that, while there are many examples of excellent Police practice in family violence, there is room for improvement in relation to strangulation in three areas:

94Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SA7.01].
95“Common assault” carries a maximum penalty of one year’s imprisonment (s 196), and “male assaults female” carries two years (s 194).
96Crimes Act 1961, s 2(1).
97Health and Disability Commissioner Caring for patients reporting assault (2008).
98“Wounding with intent to cause grievous bodily harm” carries a maximum penalty of 14 years’ imprisonment (s 188(1)); “wounding with intent to injure” carries seven years (s 188(2)); “injuring with intent to cause grievous bodily harm” carries 10 years (s 189(1)); “injuring with intent to injure” carries five years (s 189(2)); “injuring by unlawful act” carries three years (s 190); “aggravated wounding” carries seven years (s 191(1); and “aggravated injuring” carries seven years (s 191(2)).
99R v Waters [1979] 1 NZLR 375 (CA).
100Crimes Act 1961, s 2(1).
101R v McArthur [1975] 1 NZLR 486 (SC).
102R v Chan-Fook [1994] 1 WLR 689 (CA).
103We note that the harm required by the crime of “disabling” is “stupefies or renders unconscious” (Crimes Act 1961, s 197).
104R v Hende [1996] 1 NZLR 153 (CA).
105Crimes Act 1961, s 196: “Every one is liable to imprisonment for a term not exceeding 1 year who assaults any other person.”
106Crimes Act 1961, s 2(1): “assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly …”.
107Legislation Advisory Committee, above n 6, at ch 1.
108Crimes Act 1961, ss 188(1) and 189(1).
109Crimes Act 1961, ss 188(2), 189(2) and 193.
110Crimes Act 1961, ss 191(1)(a) and 192(1)(a).
111Crimes Act 1961, ss 191(1)(b) and 192(1)(b).
112Crimes Act 1961, ss 191(1)(c) and 192(1)(c).
113Robertson, above n 94, at [CA188.02].
114Crimes Act 1961, s 202C(1).
115Although we note that s 202A (the offence of “possessing an offensive weapon”) defines “offensive weapon” as “any article made or altered for use for causing bodily injury, or intended by the person having it with him or her for such use”.
116R v McLeod (1993) 84 CCC (3d) 336 (CA); and Dawson v Police HC Rotorua CRI-2003-463-73, 3 February 2004.
117Although we note that the criminal law of Alaska defines “dangerous instrument” as including “hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth” for the purposes of the offence of “causing serious physical injury by means of a dangerous instrument”, AS 11.81.900.
118Crimes Act 1961, s 197.
119The second element of intention—without unlawful justification or excuse—appears to be targeted at doctors performing medical treatment under anaesthetic.
120Robertson, above n 94, at s CA19701.
121See Dean Hawley, George E McClane and Gael B Strack “A review of 300 attempted strangulation cases part III: injuries in fatal cases” (2001) 21 J Emerg Med 317 at 320 for a discussion of the variables determining the amount of pressure required to produce unconsciousness.
122Crimes Act 1961, s 145.
123R v Mwai [1995] 3 NZLR 149 (CA).
124R v Mwai, above n 123.
125Police v Telstrasaturn Limited [2002] BCL 662 (HC). In this case, the Judge found that the respondent did not have knowledge that its failure to take precautions would endanger the public.
126R v Tolhurst [1998] BCL 1267 (DC). The farmer was convicted and fined $4,000.
127Crimes Act 1961, s 173: “Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.”
128One example is R v Campbell HC Wellington CRI-2005-085-003703, 9 February 2007, but that case concerns the admissibility of communications made by the accused to medical practitioners.