A specific strangulation offence
Other jurisdictions enacting strangulation offences
5.2Over the last decade, as the understanding of the impact of strangulation within family violence has increased, a number of jurisdictions that we sometimes compare ourselves to have examined whether strangulation is adequately dealt with by their criminal justice systems. They have reached differing conclusions, but many have enacted new strangulation offences.
5.3As at May 2014, three-quarters of the states of the United States had specific strangulation laws. An analysis of those laws in 2009, when there were only 13 states with such laws, revealed that only six were limited to domestic relationships, and there was a wide range of maximum penalties—from one year to 20 years’ imprisonment and many included fines ranging from $1,000 to $25,000. In all but one state, the offence is classed as a felony (a more serious offence) rather than a misdemeanour (a more minor offence).
5.4Across the states, the mens rea element of the offence has been dealt with differently. In Alabama, the defendant must commit the assault “with intent to cause physical harm”. However, many states have used the words “intentionally or knowingly” or similar. For example, Minnesota’s offence is as follows:
(c) “Strangulation” means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.
Unless a greater penalty is provided elsewhere, whoever assaults a family or household member by strangulation is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $5,000, or both.
5.5In 2010, New York took a different approach. It enacted three specific strangulation offences:
121.11 Criminal obstruction of breathing or blood circulation.
A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she:
a. applies pressure on the throat or neck of such person; or
b. blocks the nose or mouth of such person.
121.12 Strangulation in the second degree.
A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.
121.13 Strangulation in the first degree.
A person is guilty of strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes serious physical injury to such other person.
5.6The three offences used in New York reflect varying levels of seriousness of strangulation and can all be applied beyond a domestic context. All require intent to impede normal breathing or blood circulation, and the second two require proof of a particular type of harm. An analysis of the use of these new offences in the first 20 months showed a substantial number of arrests and arraignments, but unfortunately did not compare that to similar figures from before the new law and did not analyse the numbers of resulting convictions or sentences. The new law’s effectiveness is, therefore, uncertain.
5.7However, a study in 2009 reviewed the first six months of operation of the Minnesotan law to assess its impact on victim safety and offender accountability. The study found that 83 per cent of the cases charged under the new strangulation law resulted in a conviction, with 42 per cent of those being a conviction for strangulation. It pointed out a concern from some stakeholders that, despite these convictions, perpetrators were still not held adequately accountable due to issues with sentencing and enforcement of sentencing conditions. Broadly, the study concluded that the new law, together with the increased training given to law enforcement officers, has succeeded in increasing awareness of the potential lethality of domestic strangulation and has enhanced victim safety and offender accountability. Introducing a felony charge for strangulation sent a message that the offending is serious, so more resources were expended in prosecuting it and judges set higher bail.
5.8The United Kingdom has long had an offence of “attempting to choke, suffocate or strangle in order to commit an indictable offence”. The offence applies in all circumstances, not just family violence. In November 2015, the Law Commission (of England and Wales) published a Report examining the Offences against the Person Act 1861 (UK). That Report concluded that the offence of attempting to choke was needlessly specific and that behaviour prosecuted under that offence could generally be prosecuted under other offences. Consequently, it recommended that the offence be abolished without replacement. The Report did not address a specific offence of strangulation in the context of family violence.
5.9New South Wales, Queensland, Tasmania, the Australian Capital Territory (ACT) and the Northern Territory have all long had offences specific to strangulation similar to that in the United Kingdom—it is an offence to choke, suffocate or strangle a person in any circumstances with the intent to commit a separate indictable offence. Despite this, in 2014, New South Wales amended its Crimes Act to include a simple offence of strangulation without the requirement to prove the intent to commit another offence, as follows:
37 Choking, suffocation and strangulation
(1) A person is guilty of an offence if the person:
(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
(b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.
Maximum penalty: imprisonment for 10 years.
(2) A person is guilty of an offence if the person:
(a) chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
(b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.
Maximum penalty: imprisonment for 25 years.
(3) In this section:
another indictable offence means an indictable offence other than an offence against this section.
5.10In late September 2015, the ACT Attorney-General introduced the Crimes (Domestic and Family Violence) Amendment Bill 2015, which, if enacted, will amend the existing offence of an “act endangering health” in section 28 of the Crimes Act 1900 (ACT) to provide that “a person who intentionally and unlawfully chokes, suffocates or strangles another person is guilty of an act endangering health”. That offence is not restricted to family violence circumstances and carries a maximum penalty of five years’ imprisonment.
5.11In December 2015, the Queensland Government announced that it will enact a specific offence of strangulation carrying a maximum penalty of seven years’ imprisonment. This follows the publication of the Report of the Special Taskforce on Domestic and Family Violence, which made 140 recommendations on how the Queensland Government and community can better address and reduce family violence, including the introduction of a specific offence of strangulation.
5.12In 2006, following several states in the United States enacting specific strangulation offences, the Uniform Law Conference of Canada established a working group to examine the feasibility of a distinct offence of strangulation and whether existing provisions adequately address the seriousness and significance of that specific conduct. That group concluded that the existing provisions of the Criminal Code were adequate to address the issue of strangulation, and while a discrete offence may help to document a prior history of strangulation, that alone did not justify the creation of a new offence. The group also found that, while there was evidence that strangulation serves as a marker for increased risk of future violence, that proposition was not without controversy.
5.13In reaching its conclusion, the working group found that strangulation that did not result in physical evidence of harm could nonetheless be prosecuted as an aggravated assault that “endangered the life” of the victim. Under the Canadian Criminal Code, the offence of aggravated assault is:
Every one commits an aggravated assault who wounds, mains, disfigures or endangers the life of the complainant.
5.14This offence carries a maximum penalty of 14 years’ imprisonment (longer than many of the specific offences in the United States), and an attempted aggravated assault carries seven years. The working group found that the medical literature supports the contention that strangulation will endanger the life of the victim and, as such, that offence provides an adequate response to the issue.