A red flag for homicide

Should non-fatal strangulation be made a stand-alone criminal offence?

Heather Douglas

Law, Social policy | Australia

3 October 2018

Non-fatal strangulation is a significant risk factor for a woman being killed by her partner. Heather Douglas looks at recent efforts by Australian states to take the behaviour more seriously.

Women who have experienced domestic violence commonly report non-fatal strangulation, sometimes referred to as choking. One US study found that up to three-quarters of women in domestic violence shelters reported non-fatal strangulation from their previous partner. It’s a gendered crime – most victims are women and most perpetrators are men.

Perhaps because there are often no obvious or immediate injuries associated with non-fatal strangulation, this type of violence is often minimised, missed and misidentified by victims, police, health workers and other service providers.

This is concerning because the act is both extremely dangerous and a risk factor for future serious harm and death.

Whether carried out by bare hands squeezing or pushing on the neck, or by using a ligature, non-fatal strangulation is highly dangerous. Victims who have survived a strangulation incident report all sorts of clinical symptoms, including a sore throat; changes to vision, vocal chords, hearing and breathing; loss of sensation; memory loss; anxiety; loss of consciousness; and paralysis. Some women have had a pregnancy miscarriage after strangulation.

Even where there are no visible injuries, some victims have died several weeks or months after the attack, as a result of blood clots, stroke and brain damage caused by lack of oxygen during the strangulation. Strangulation can cause unconsciousness within seconds and death within minutes.

More on this: Podcast: Tackling violence against women

Strangulation in the context of domestic violence is also a risk factor for future serious harm and death. US studies show that in close to 50 per cent of deaths involving intimate partner violence, women had experienced non-fatal strangulation at least once before they were killed. Similarly, in Australia, domestic violence death reviews have often identified that the homicide was preceded by an incident of non-fatal strangulation. As American strangulation educator Gael Strack says, “strangulation is the last warning shot”.

In response to this evidence, Queensland introduced a non-fatal strangulation offence in 2016. One of the elements of the offence is that the victim and the offender must be in a domestic relationship. The penalty is a maximum of seven years imprisonment.

Since the non-fatal strangulation offence was introduced, over 1000 people have been charged with it. The offence has significantly raised the profile of the dangers of strangulation, with Queensland judges now highlighting these dangers in their judgments.

In a recent case, the offender visited his ex-partner’s home. He assaulted her and then placed her in a ‘choke hold’ from behind with his arm and squeezed hard enough that she could not breathe or move. She was terrified and lost consciousness. The offender was charged with the strangulation offence and sentenced to a period of imprisonment.

Until Queensland introduced this offence, the state’s criminal law was ill-equipped to properly recognise and criminalise this dangerous behaviour.

While acts of non-fatal strangulation might be charged under traditional offences across Australia, there are significant issues with this. For a start, it’s difficult to prove the intent to kill or cause serious harm associated with a charge of attempted murder. For more serious assault and grievous bodily harm charges, it can be hard to prove the level of injury needed because often there is no visible sign of injury.

More on this: The conversation we need to have

Assault seems too minor to capture the high level of danger associated with non-fatal strangulation. While many states treat strangulation to facilitate a serious crime as a specific type of offence, this offence doesn’t cover situations where strangulation is an offence by itself.

South Australia has begun drafting a new strangulation law and NSW has committed to introducing changes to its strangulation law in 2018. In Victoria, non-fatal strangulation is shaping up to be an election issue, with the opposition leader promising to introduce the offence to criminal law if he is elected in November.

Some have questioned whether the introduction of a new offence makes victims safer. While most states in America introduced specific offences for non-fatal strangulation years ago, so far there has been no evaluation of their value in increasing victim safety.

It is clear, however, that in Queensland the offence has created greater awareness of the direct harms that can result from non-fatal strangulation as well as greater knowledge that the act is a red flag for a high risk of serious harm and death in the future. Courts now use non-fatal strangulation as a key factor when considering whether it is necessary to arrest a defendant or safe to grant him bail. A charge of strangulation puts victims and services on notice that a victim needs safe housing and a health check to make sure she is okay.

However, while recognition of strangulation is important, it is not the only cause of serious harm nor the only risk factor for future injury in the context of domestic violence. The safety of anyone reporting domestic violence always needs careful attention.

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