8.5We consider these objectives would be best achieved by enacting the following offence as we described it in Chapter 5:
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.
8.8The 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.
8.12The 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.
8.16By 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.