Chapter 4
​Current problems prosecuting strangulation

A lack of awareness of the risks and effects of strangulation

4.3Over the past two decades, there have been a number of initiatives to address a growing concern about the level of family violence in New Zealand, including the “It’s not OK” campaign in 2007. That was a social marketing action programme designed to change how people think and act about family violence. Despite the success of that campaign in increasing awareness of family violence and causing attitude and behaviour changes,89 it is apparent to us that the prevalence and effects specifically of strangulation continue to be under-recognised.

4.4This under-recognition occurs at every level of intervention with family violence. It means that people who are making decisions designed to keep women safe are not giving sufficient weight to a significant risk factor. The following are examples of how this problem occurs in practice:

4.5This problem has been described in other jurisdictions. One Report from the United States records that:90

In the past, victims, perpetrators, police officers, prosecutors, judges, and medical personnel often minimized “choking” cases. The lack of visible injury and inadequate training caused the entire criminal justice system to unintentionally treat [strangulation cases] as minor assaults with little or no consequences.

4.6In 2001, the San Diego study found that Police and prosecutors overlooked symptoms and focused on visible injuries to prove strangulation. No one knew what questions to ask the victim to determine if she had any symptoms. The researchers found that:91

… unless the victim had significant visible injuries or complained of continuous pain requiring medical attention, the police were inclined to handle the incident as minor – almost as if the victim had been slapped, rather than having been strangled. Further, the victims often failed to mention their symptoms or declined medical attention, even when they were having difficulty breathing.

4.7This is consistent with the information we have been given about Police practice in New Zealand. Even when the victim reports choking or strangulation to the point of beginning to lose consciousness, it is not uncommon for it to be treated as a minor assault, signs and symptoms are not investigated, there is little action taken to keep the victim safe and there is little or no accountability for the perpetrator. While this may be caused by many factors, including a lack of time and resources, it is clear to us that a lack of understanding about strangulation is often one cause.

4.8Another implication of a failure to understand the significance of strangulation is that victims may not be receiving appropriate medical treatment for the symptoms of strangulation. This can relate to both the physical symptoms and the psychological symptoms. While a person who suffers a concussion due to, for example, a rugby injury has a clear pathway through the medical system for the assessment of that concussion, there is no similar pathway for assessment of a loss of consciousness due to strangulation despite the symptoms being similar.

Recording strangulation

4.9Even if the people making decisions affecting victim safety are aware of the prevalence and significance of strangulation in family violence, it can be impossible for them to know whether a particular person has a history of strangulation because it is not recorded in Police or criminal records.

4.10Currently, there is no formal recording or reporting on strangulation. When a Police officer attends a call-out and family violence is alleged, the officer will complete a family violence incident report (known as POL 1310). That report records details of the incident including all visible injuries. Sometimes, Police will take photographs. They also look for evidence to corroborate allegations and may consider whether to refer a victim for a forensic medical assessment. If an allegation of strangulation is made, that fact will be noted in the narrative part of the record but not as a stand-alone item.

4.11If it is assessed that there has been a physical assault between intimate partners,92 a screening assessment, called the Ontario Domestic Assault Risk Assessment (ODARA), will also be completed. ODARA is an actuarial risk assessment tool to predict recidivism of assault in intimate partner relationships. Prior to the introduction of ODARA in 2012, the standard form family violence incident report included a question about strangulation. That question is omitted from the new POL 1310 form because it follows the structure of ODARA screening, which is designed to identify the risk of future assault, not future fatal attack.

4.12If the criteria for ODARA are not met (there was no physical assault or qualifying threat), an Intimate Partner Vulnerability Factors form is completed instead. That form contains a question asking whether the offender has previously strangled a person, although it does not ask about the events for which the officer is in attendance.

4.13Police enter information about the incident into the National Intelligence Application (NIA) within 72 hours of the call-out. NIA is the core collection of Police operational information. It records all information from a 111 call through to details of allegations and any charge laid or other action taken. It includes information from the POL 1310, the ODARA score and a narrative describing the incident and allegations. All incidents that are categorised as family violence are identified with a “family violence flag”. If strangulation was a feature of the incident, that fact may be mentioned in the narrative, but there is no consistent form of words used and no systematic method of coding it as strangulation. For example, in addition to “he strangled her” or “he choked her”, we have seen strangulation described as “he grabbed her around the throat”, “he placed his hands around her neck and tightened his grip”, “he held her throat” and “he put pressure on her neck”. This makes it very difficult to electronically search NIA to determine the prevalence of strangulation.

4.14If a charge is laid, information from NIA about the charge, including any family violence “flag”, is transferred into the Ministry of Justice’s Case Management System (CMS). CMS is the Ministry’s record system for all court information. It records details of all charges and hearings and the outcomes of hearings. Information on a person’s criminal history is generated from CMS data. When a case has been finally determined by a court, information on the outcome is also put into NIA.

4.15When judges are making bail decisions, they receive information from CMS about the current charges and criminal history. Any family violence flag transferred to CMS does not currently appear on the charging document unless that is picked up by the court registrar. However, we are told, from March 2016, that information will be included on all charging documents, when appropriate.

4.16The only way the judge is likely to know if the criminal history involves strangulation is if it is noted by the Police in their opposition to bail. Police will only know of a strangulation history if it is spotted in the narrative of incidents recorded on NIA. Given that there is no specific strangulation question on the POL 1310 or standard set of words to describe strangulation on NIA, there is a risk that this information will be overlooked. This may be particularly likely when the family violence history on NIA goes back many years and involves many incidents.

4.17This lack of information about strangulation behaviour is part of a bigger problem about identifying whether incidents of violent offending occurred in family violence circumstances. A conviction for “male assaults female” gives a strong indication to a judge that the violence occurred in family violence circumstances, but other charges carry no comparable indicator. This is particularly concerning in relation to more serious charges and means that judges do not have sufficient information to make well-informed decisions.

4.18We note that the Ministry of Justice has recently announced a pilot programme to give judges making bail decisions a report summarising the family violence history of the defendant.93 That report includes all current charges and family violence convictions, Police call-outs to family violence incidents involving the defendant, all protection orders and Police safety orders and any breaches of those orders. This report is currently being piloted in the Porirua and Christchurch District Courts, and an evaluation is expected to be completed by mid-2016. If this pilot is expanded nationally, it will provide significantly more relevant information to judges making decisions in family violence circumstances.

4.19Judges making protection orders or other decisions in the Family Court do not automatically receive information from CMS on current charges or the criminal history of the parties. That information can, however, be made available if requested on a case-by-case basis.

89Dr Michael Roguski ‘It’s not OK’ Campaign Community Evaluation Project (Kaitiaki Research and Evaluation Ltd, 18 March 2015) at iii; and Point Research Ltd An Innovative Approach to Changing Social Attitudes around Family Violence in New Zealand: Key Ideas, Insights and Lessons Learnt (March 2010).
90Gael B Strack and others “Investigation and Prosecution of Strangulation Cases” (2014) 19 Domestic Violence Report 83.
91Gael B Strack, George E McClane and Dean Hawley “A review of 300 attempted strangulation cases part I: criminal legal issues” (2001) 21 J Emerg Med 303 at 308.
92Including a sexual assault or threat of harm with a weapon in hand in the presence of the victim.
93Myles Hume “Judges to get reports on offenders’ family violence history” (26 August 2015) Stuff <www.stuff.co.nz >.