5.25We have considered whether a new strangulation offence should be limited to family violence circumstances or apply in all contexts. On the one hand, limiting a strangulation offence would emphasise the unique risk of this type of offending in family violence circumstances. The studies linking strangulation to a high risk of future fatal attack relate only to family violence circumstances. There is no similar link demonstrated in other circumstances. It seems likely that some people who strangle in other circumstances will present a significant risk, but others—such as those who have been trained in using a choke hold for self-defence purposes—will not. Limiting an offence to family violence would help to keep the risk of future fatality in the forefront of the minds of Police and judges and help them make better decisions to keep victims of family violence safe.
5.26On the other hand, the problems we identified in Chapter 4 with prosecuting strangulation in family violence circumstances are likely to apply equally to other contexts. The difficulties described in proving the fact of strangulation or the requisite harm or intention elements are tied to strangulation, not the family violence context, so would also arise in other contexts and result in a lack of appropriate accountability for offenders.
5.27Also, if family violence circumstances were an element of the offence, proving that fact would sometimes impede prosecution, perhaps where the relationship in question was unstable, ambiguous or after the victim had ended the relationship. This problem could be partly addressed by a broad definition of “family relationship” but could still place a difficult burden on the prosecution and victim in some circumstances.
5.28We have concluded these problems mean that any new offence should not be limited to family violence cases. While our terms of reference are focused on family violence, it is artificial to ignore the broader criminal context. We consider limiting a new offence to family violence circumstances would risk anomalous and inconsistent treatment of different classes of offenders whose conduct may be equally culpable.
5.29However, at a practical level, it is important that a judge making bail decisions or protection orders knows whether any previous convictions for strangulation occurred in family violence circumstances. If the judge does not know that, he or she cannot know that there is an increased risk of fatality for the victim and make decisions to mitigate that risk.
5.32We consider that, if this mechanism were enacted, careful consideration would need to be given to the standard of proof required. While on the face of it, the identification is merely for the purposes of noting the circumstances on the criminal record and does not have a direct impact on the penalty, we consider that there remains substantial scope for the defendant to be disadvantaged.