Domestic Violence, Strangulation and the Law

, Domestic Violence, Strangulation and the Law

Domestic Violence, Strangulation and the Law

Over the years the issue of Domestic Violence and strangulation has become an increasingly serious problem.  Although close to a billion dollars has been spent on Government campaigns to fight domestic violence as well as new laws being placed, women, men and children continue to be at risk.

Domestic violence takes many forms, many of them being non- physical in nature. For example, one can be subjected to domestic violence through verbal, emotional or social abuse. However, strangulation is one of the most lethal forms of domestic violence, unconsciousness may occur within seconds and death within minutes. It is this type of abuse that seems to be the most worrying and attracts the most media attention.

THE STORY

The fate of a Queensland mother, whose story appeared in the news recently, is yet another reminder of how serious the problem of domestic violence in Australia is.

Strangled by her partner almost two years ago, she is suffering ongoing medical issues, resulting from that incident.

The strangulation left her with PTSD, two crushed disks in her back, serious muscle tears, intestinal problems, memory loss, vocal cord dysfunction, blurry vision, panic attacks, anxiety and depression. The effect of the strangulation is sure to leave her scarred for life – both physically and mentally.

Because the experience affected her memory, the woman does not remember how many times she was strangled, nor how long she lay at the scene of the incident, left there by her partner, once the act of violence was completed.

The damage to her neck had very severe consequences even up to a year following the incident. The vital arteries in her neck, she has been told, may collapse, which may lead to the reduction in the supply of blood to the brain, ultimately causing a stroke.

Nearly two years after the attack, the woman’s nightmare is as alive as the day it happened. It won’t be until November that she will be able to find out if she suffered traumatic brain injury, as that requires a special scan to be performed.

STATISTICS

The state’s Sentencing Advisory Council analysis shows from June 2016 to June 2018 more than 400 cases were sentenced for the non-fatal strangulation offence.

In just under half those cases, the non-fatal strangulation was also a breach of a domestic violence protection order.

Nearly all offenders were male (98 per cent). The oldest offender was 60 and the youngest 15 — and most received a prison sentence (76 per cent).

NSW introduced a new strangulation offence last year, and South Australia followed suit at the start of this year.

A quarter of all NSW murder victims had suffered a strangulation attack prior to their deaths. Ms Taylor echoed Sue’s call for better recognition and treatment of strangulation in the health system — saying victims can die up six to 12 months after an attack.

STRANGULATION

With a stronger focus on domestic violence, the NSW Government introduced the Crimes Legislation Amendment Bill 2018 to Parliament, aimed at creating a new offence of intentionally choking, suffocating or strangling a person without consent [Section 37(1A)]. The new offence is, punishable by a maximum jail term of 5 years. The removal of the requirement that the victim be rendered unconscious or unable to resist means a big change.

The NSW Government has introduced this new offence of strangulation, in an attempt to make the offence of strangulation easier to prove, which is hoped to reduce the rate of domestic murders.

This is meant to be part of a suite of reforms to the state’s Apprehended Domestic Violence Orders (ADVOs), aimed to increase domestic violence victim protection. As part of this, victims will now be able to apply for indefinite ADVOs in the most serious cases.

For an outline of the law and penalties on breaching AVOs, see our page on AVO’s.

THE LAW

Section 37(1A) of the Crimes Act 1900 (NSW) (The Act) provides that:

“A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent”. There is no requirement to render the victim unconscious and unable to resist.

The maximum penalty is 5 years’ imprisonment.

Section 37(1) of the Act requires that:

“Intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and is reckless as to rendering the other person unconscious, insensible or incapable of resistance”.

The maximum penalty is 10 years’ imprisonment.

Section 37(2) of the Act states that a person is guilty of an offence if the person:

Chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence”.

The maximum penalty is imprisonment for 25 years.

WHAT MUST THE PROSECUTION PROVE?

To convict you of choking, suffocation and strangulation, the prosecution must prove each of the following matters beyond a reasonable doubt:

For section 37(1),

That you, without consent:

  • Intentionally choked, suffocated or strangled another person.

For section 37(2):

That you, without consent:

  • Intentionally choked, suffocated or strangled another person
  • Recklessly rendered that person unconscious, insensible or incapable of resistance.

This offence is taken very seriously. If you or someone you know has been charged with this offence, come talk to us at National Criminal Lawyers.

Book your first free appointment with National Criminal lawyers now.
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