Chapter 5
A specific strangulation offence

The elements of a strangulation offence

5.15We consider that any new strangulation offence should be kept as straightforward as possible. An example is the following:

Every one is liable to imprisonment for a term not exceeding [X] years who strangles or suffocates any person.

5.16The meaning of “strangles or suffocates” should be defined. Our research indicates that the term “strangulation” is not well understood. Some people mistakenly believe that strangulation is always fatal and so a non-fatal strangulation is really an “attempted strangulation”. A better understanding is that it is a form of asphyxia characterised by closure of the blood vessels or air passages of the neck as a result of external force on the neck.144 Consequently, we consider that “strangles or suffocates” should mean:

impedes normal breathing or circulation of the blood by intentionally applying force on the neck or by intentionally using other means.

5.17The only matter that the prosecution must prove is that means were intentionally used that had the result of impeding normal breathing or circulation. It would not need to prove that the defendant intended to impede breathing or circulation, or even that he or she understood the risk of that and did it anyway.

Proof of harm

5.18We do not consider that a strangulation offence should require proof of a particular harm. Liability, or guilt, arises from intentionally strangling the victim, not from the harm that arises from that act with which it is done.

5.19In theory, a strangulation offence could require that the strangulation resulted in a loss of consciousness or other serious injury. Alternatively, it could require that the strangulation had a controlling or coercive effect on the victim.145 However, as we described in Chapter 4, none of these harms or effects are relevant to all strangulation in family violence circumstances. Even when they do exist, they can be difficult to prove, which unnecessarily inhibits effective prosecution of the perpetrators.

Proof of intentTop

5.20Similarly, basic intent is sufficient to give rise to liability for strangulation, without the need to prove an additional ulterior intent element. That means that it would be sufficient that the force was intentionally applied to the neck. There should be no need to prove an additional motive.

5.21That the strangulation was intentional will often be inferred from the conduct proved and will only be an issue if there is a suggestion the strangulation could have been accidental. Police and doctors tell us that, when pressure is applied to the neck, it is almost always an intentional act. It is only in extremely unusual circumstances that force is accidentally applied to the neck.

SuffocationTop

5.22We note that some of the strangulation offences in other jurisdictions capture suffocation within the prohibited conduct. While strangulation restricts the supply of oxygen and blood to the brain by external pressure to the neck, suffocation does not imply any particular act; it simply describes restriction of breathing resulting in a lack of oxygen to the brain. Strangulation by pressure on the larynx inhibits breathing, so is a form of suffocation, but suffocation can also occur by blocking the in-flow of oxygen to the body through the nose and mouth or applying pressure to the chest so that the lungs cannot work. In theory, suffocation could also occur by limiting the oxygen in the air around the victim.

5.23We have been told by people who work with victims of family violence that suffocation is much rarer than strangulation in that context. However, during the course of this project, we have heard of an offender covering a victim’s mouth and nose with his hand and of an offender sitting on the victim’s chest.

5.24We consider that most forms of non-fatal suffocation in the family violence context are likely to share similar traits to strangulation. Suffocation would also be an effective method of control and coercion by inducing the terror that arises from being unable to breathe and demonstrating to the victim that the perpetrator could kill her. It would leave few visible signs so, like strangulation, is likely to be under-recognised and under-prosecuted. Consequently, it is likely that perpetrators of suffocation are also not held adequately accountable as the law and practice stands. For these reasons, we consider that any new strangulation offence should also extend to suffocation.

144Lisa BE Shields and others “Living victims of strangulation: a 10-year review of cases in a metropolitan community” (2010) 31 Am J Forensic Med Pathol 320.
145We note, for example, that the United Kingdom has recently introduced an offence of controlling and coercive behaviour in an intimate or family relationship. See Serious Crime Act 2015 (UK), s 76.