A new bill would bring Victoria's strangulation laws in line with other states – but consent complicates matters
- Written by Heather Douglas, Professor of Law, The University of Melbourne
In October 2011, Victorian woman Joy Rowley was strangled to death by her intimate partner. It was not the first time he had strangled her. Over the eight-month period leading up to her death she had called the police multiple times to report strangulation attacks[1].
In the inquest that followed, the coroner highlighted an incident months before she died that involved strangulation and a knife. Police did not lay charges against the offender James Mulhall until several months after that incident. Rowley’s family and others have tirelessly campaigned since for the introduction of a strangulation offence[2].
Today, 12 years later, the Victorian parliament introduced a bill to criminalise non-fatal strangulation[3] as a standalone offence.
Read more: When it comes to family violence, young women are too often ignored[4]
Common and gendered
Strangulation, also referred to as choking, means stopping or hindering a person’s breath or blood flow through neck compression.
It is a common and gendered form of violence reported by 25–60% of family violence victim-survivors[5]. It is recognised as a form of coercive control[6] – a pattern of controlling and manipulative behaviours within a relationship. Through strangulation, abusers can show they literally hold the victim-survivor’s life in their hands[7].
A person who has experienced strangulation from their abusive partner is six or seven times more likely[8] than other victim-survivors of family violence to experience death, or very serious harm, in the weeks or months that follow.
Read more: 7 red flags your teen might be in an abusive relationship – and 6 signs it's escalating[9]
Injury and death
Some 15% of deaths attributed to family violence are caused by strangulation[10]. Death can occur in around a minute[11] with a level of pressure required being less than what’s needed to open a soft drink can[12].
Sometimes death can occur weeks or months after strangulation because of blood clots, stroke or brain damage[13]. When it is not fatal, injuries can be long-lasting including loss of consciousness, brain injuries resulting in memory loss, and pregnancy miscarriage.
Short-term injuries are common too, and may include bruising and nausea. However, in about 50% of cases victim-survivors have no visible injuries even when they have lost consciousness[14].
Read more: Family violence can include fire threats and burning. We can do more to protect women[15]
The new bill
In Victoria, strangulation is commonly charged as an assault, which does not reflect the seriousness of the offence. Victoria’s proposed strangulation legislation includes two forms of the offence[16]. The most serious form will require the prosecution to prove the offender intended to cause injury. It will attract a maximum ten-year prison sentence.
A second form won’t require proof of injury and could attract a five-year maximum penalty. In such cases, it will be possible for the accused to demonstrate there was affirmative consent and avoid conviction. The government says this will:
[…] provide protection for people who have engaged in genuinely consensual non-fatal strangulation during sexual activity and no intentional injury has occurred.
Choking and sex
Historically, strangulation has been understood as a risky and edgy form of bondage and domination sexual practices. But despite its dangers, strangulation has become an increasingly common part of sex, especially among younger people. This may be driven by increasing engagement with pornography where depictions of choking are frequent[17].
A survey of over 4,000 American undergraduate students found around one quarter of women reported being choked in their most recent sexual experience[18]. The same study also highlighted the gendered nature of the activity, with women much more likely to be choked by their male partner than the other way around.
Should consent be a defence?
There is increasing debate about whether consent should be a defence to any form of strangulation, given the risks and dangers associated with it[20].
Reported cases of rape and sexual assault frequently feature claims by the accused that violent sex, including strangulation, was consensual. This leads to challenges to victim-survivors’ credibility and “he said-she said” arguments[21]. Some experts are worried this resurrects the “she asked for it[22]” defence in rape and sexual assault cases.
In Queensland, where the strangulation offence has been in place since 2016[23], lawyers report allegations of non-consensual strangulation during sex generally result in sexual offence charges, rather than for strangulation.
Claims strangulation was consensual have been rare[24]. This likely points to low levels of complaint rather than that non-consensual strangulation during sex it is not happening[25].
Queensland court statistics show when a charge of strangulation is lodged, about 23% of charges lead to a conviction of strangulation. The other 75% of matters are withdrawn because victim-survivors do not wish to proceed, there is insufficient evidence or a different charge such as assault proceeds[26]. Conviction of strangulation in Queensland results in imprisonment in over 95% of cases[27].
Read more: First Nations women don't always access health care after head injuries from family violence. Here's why[28]
An important step
Victoria is the final state or territory in Australia to introduce a standalone offence of strangulation[29].
Elsewhere the introduction of the offence has significantly improved knowledge among front-line workers about the risks and harms of strangulation. Greater understanding of its risk and harms should lead to more appropriate referrals and enhanced safety[30].
The proposed law is an important step in recognising the specific risks and harms associated with this behaviour. Now it’s been introduced to parliament, the text of the bill will likely be debated and potentially adapted before being passed. Hopefully the introduction of the offence will bring with it appropriate training opportunities and greater awareness.
For information and advice about family and intimate partner violence contact 1800 RESPECT[31] (1800 737 732). If you or someone you know is in immediate danger, contact 000. Kids Helpline[32] is 1800 55 1800. Men’s Referral Service[33] (call 1300 766 491) offers advice and counselling to men looking to change their behaviour.
References
- ^ strangulation attacks (www.abc.net.au)
- ^ offence (www.theage.com.au)
- ^ non-fatal strangulation (www.premier.vic.gov.au)
- ^ When it comes to family violence, young women are too often ignored (theconversation.com)
- ^ victim-survivors (journals.sagepub.com)
- ^ form of coercive control (journals.sagepub.com)
- ^ hands (www.ag.gov.au)
- ^ six or seven times more likely (www.jem-journal.com)
- ^ 7 red flags your teen might be in an abusive relationship – and 6 signs it's escalating (theconversation.com)
- ^ strangulation (apo.org.au)
- ^ minute (www.familyjusticecenter.org)
- ^ soft drink can (www.allianceforhope.com)
- ^ blood clots, stroke or brain damage (www.courts.qld.gov.au)
- ^ consciousness (www.kemh.health.wa.gov.au)
- ^ Family violence can include fire threats and burning. We can do more to protect women (theconversation.com)
- ^ offence (www.premier.vic.gov.au)
- ^ frequent (www.researchgate.net)
- ^ most recent sexual experience (pubmed.ncbi.nlm.nih.gov)
- ^ Shutterstock (www.shutterstock.com)
- ^ dangers associated with it (commons.allard.ubc.ca)
- ^ arguments (www.queenslandjudgments.com.au)
- ^ she asked for it (commons.allard.ubc.ca)
- ^ 2016 (www5.austlii.edu.au)
- ^ rare (journals.sagepub.com)
- ^ not happening (law.unimelb.edu.au)
- ^ such as assault proceeds (law.unimelb.edu.au)
- ^ 95% of cases (www.courts.qld.gov.au)
- ^ First Nations women don't always access health care after head injuries from family violence. Here's why (theconversation.com)
- ^ strangulation (law.unimelb.edu.au)
- ^ referrals and enhanced safety (www.redrosefoundation.com.au)
- ^ 1800 RESPECT (www.1800respect.org.au)
- ^ Kids Helpline (kidshelpline.com.au)
- ^ Men’s Referral Service (ntv.org.au)
