Chapter 8
Recommendations for reform

Strangulation offence

8.5We consider these objectives would be best achieved by enacting the following offence as we described it in Chapter 5:

Recommendations

Consultation

8.6Our consultation revealed wide support for a specific strangulation offence. Some people considered that the scale of New Zealand’s family violence problem alone justifies enactment of a specific offence. Others favoured a new offence because they considered that the current framework of offences was not well suited to strangulation. A number of people who, as a matter of principle, generally opposed the enactment of specific offences, acknowledged that it is justified in this case, at least in respect of strangulation that does not result in visible injury.

8.7While we agree that the size of the current family violence problem justifies a meaningful response, we consider that remedial law reform is justified only if it can be shown that reform will successfully address the policy objectives and those objectives cannot be achieved equally or better by other, non-legislative mechanisms.179 Below, we describe how the strangulation offence will address the objectives. At the end of this chapter, we discuss whether other mechanisms would do so equally well or better.

Addressing the objectivesTop

Raising awareness of strangulation

8.8The enactment of this offence (and the surrounding publicity) would send a strong message that strangulation is a potentially lethal form of violence and the risk of a future fatal attack needs to be considered by those making decisions affecting victims. The publicity and training accompanying the introduction of such an offence would provide the opportunity to explain the most troublesome hallmarks of family violence strangulation: that it often leaves no visible signs and is a red flag for an increased risk of fatality.

8.9The Police have told us that the enactment of a strangulation offence would enhance their officer training because legislative provisions provide the framework for their education. A strangulation offence would help to focus the attention of officers on this aspect of family violence, which is currently under-recognised.

8.10In a similar way, the “labelling effect” of a strangulation offence would mean that people dealing with victims of family violence are more likely to ask about strangulation and help victims obtain medical assessment and treatment.180 This, in turn, would increase the likelihood of decisions to keep abusers away from victims and, in theory, reduce the risk of future fatal attacks.
8.11As described in Chapter 5, a study of the effectiveness of a specific strangulation law in Minnesota found a significant increase in the awareness of the seriousness of strangulation following the enactment of the new law.181 In particular, it found that the new offence had highlighted to Police and others dealing with family violence that strangulation is common and dangerous. The new offence meant that strangulation was now thought of as a “red flag” in family violence, prompting closer attention.182

Effective criminal sanctions

8.12The new offence would provide a more effective option for prosecuting strangulation in family violence circumstances when it does not result in visible injuries. Serious instances of such strangulation that are now charged as “male assaults female”, rather than more serious offences due to evidential difficulties, will instead be prosecuted under the new offence. Examples are where the victim reported that she lost consciousness or was “struggling to breathe” but there is no other evidence of injury. “Struggling to breathe” is not an “injury” as it is currently defined, despite it being a terrifying experience and an effective method of intimidation, coercion and control. A loss of consciousness would indicate a charge of “disabling” is appropriate, but that offence requires that the perpetrator intended the victim to lose consciousness. These types of scenarios tend to be charged currently as “male assaults female”. The strangulation offence described will provide an effective criminal sanction with a significantly higher maximum penalty than “male assaults female”.

8.13It should be acknowledged that evidential hurdles in proving strangulation will remain. Victims may be reluctant to give evidence, or their memories may be affected by neurological damage caused by the strangulation. There may be no third-party witnesses, or specialist medical assessments may not be possible or considered warranted. However, we consider that the enactment of a specific offence (and the educational benefits that accompany it) will go some way to addressing that problem. If Police understand the risks of strangulation and the fact that it commonly does not result in visible injuries, they will be likely to take more time and effort to gather sufficient evidence.

8.14This result occurred in Minnesota following the new law and accompanying Police training.183 Police conducted more thorough investigations, including taking more photos and better documenting the crime scene. It was also thought that, because the new offence was a felony, carrying a more serious penalty than had been available previously, Police were being more proactive in dealing with the charges. A similar result can be expected in New Zealand.
8.15It should also be acknowledged that, even if a strangulation charge is laid, it could be reduced to a lesser, generic offence after plea negotiations. However, any reduced charge must still reflect the essential criminality of the conduct.184 Also, the introduction of a specific offence and inclusion of strangulation in the statutory list of aggravating factors for sentencing sends a strong signal that strangulation is a significant element of the offending that cannot be treated lightly. If a less serious, generic charge is ultimately laid, the starting point for sentencing will be less, but the aggravating nature of strangulation may still increase the sentence within those limits.

Increasing safety of victims

8.16By increasing awareness of strangulation and enabling more appropriate sentences, a new strangulation offence is also likely to increase the safety of victims. Increased awareness should lead to greater care and attention in specific cases, leading in turn to better victim assistance and more effective prosecution. If more cases result in charges or more serious charges, it is also likely that more perpetrators will be sentenced in a way that inhibits their contact with victims and, thereby, reduces the risk of future fatal attack.

8.17The Minnesota study found an increase in the number of convictions of strangulation crimes after the enactment of the new offence.185 It was thought that, by elevating strangulation above other forms of family violence, the lethality of the behaviour was expressly recognised, so more attention was paid to the cases and victim safety was enhanced.
179Legislation Advisory Committee Legislation Advisory Committee Guidelines (Ministry of Justice, 2001) at 20.
180We discussed the need for better access to medical assessments in Chapter 7.
181Heather Wolfgram WATCH Report Part I: The impact of Minnesota’s felony strangulation law (WATCH, January 2007).
182At 4 and 5.
183At 6.
184Crown Law Solicitor-General’s Prosecution Guidelines (2013) at [18.6.1], and see above at [3.21] of this Report for more discussion on plea negotiations.
185Heather Wolfgram, above n 181, at 5.