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:
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.
… 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.
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.
4.12If 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.
4.19Judges 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.