A specific strangulation offence
5.33There are times when the intentional application of force to the neck is done with consent (either express or implied) and should not be considered criminal. Examples include certain contact sports and sexual practices. Acts of strangulation with the consent of the victim can be excluded from the offence in several ways, which are:
- specifically in the offence provision itself, for example, by the inclusion of the words “without consent”;
- by including a defence that the victim consented to the strangulation; or
- via the common law.
5.34When a statute is silent in respect of consent, the common law holds that, generally, consent is a complete defence to any harm short of death unless the defendant was acting in reckless disregard for the safety of others or intended to cause grievous bodily harm, or there are public policy grounds to exclude a defence of consent. Whether there are relevant public policy grounds will depend upon the particular facts of the case. A trial judge will take account of:
- the right to personal autonomy;
- the social utility (or otherwise) of the activity;
- the level of seriousness of the injury intended or risked;
- the level of risk of such injury;
- the rationality of any consent or belief in consent; and
- any other relevant factors in the particular case.
5.35If a judge does not exclude consent on these grounds, it will be for the jury to determine whether there was intent to inflict grievous bodily harm or the defendant was acting in reckless disregard for the safety of others.
5.36There is, however, an exception to these common law principles in respect of consensual fighting (other than in the course of sport). In those cases, the consent of the participants would not be a defence to the infliction of even minor injury. Organised sports are in a different category on public policy grounds due to their social utility (for example, social entertainment and public health benefits). The common law holds that players are taken to have consented to all conduct that is within the rules and also to any infractions of the rules that are of a kind that could reasonably be expected to happen during a game or that are reasonably incidental to the normal playing of the game at the level in question.
5.37We consider questions of express or implied consent in strangulation can be left to these common law principles. They do not need to be dealt with specifically in the legislation. It is true that the common law of consent is complicated and enactment in statute would make the rules more accessible to the average person. However, this is true for consent in respect of all violent offences (and possibly some property offences). We see no special grounds for providing separate statutory rules in this regard specifically for strangulation.
5.38This means that, where a question of consent is raised in relation to strangulation, a judge may exclude it from the jury’s consideration if he or she considers that there are public policy grounds to do so, for example, no reasonable person in those circumstances would have believed that consent had been given. If consent is not excluded by the judge, it will be for the jury to consider whether the defendant intended to inflict grievous bodily harm or was acting in reckless disregard for the safety of the victim. A defence of consent will not stand if the jury finds one of those things existed.