Non-Fatal Strangulation Victoria
In response to the recognition of the dangers posed by non-fatal strangulation in family violence contexts, the Victorian Government has introduced new legislation targeting this specific form of violence.
The Crimes Amendment (Non-fatal Strangulation) Act 2024, which commenced on 13 October 2024, creates two new offences in the Crimes Act 1958 and makes consequential amendments to the Family Violence and Protection Act 2008.
These amendments follow significant advocacy and research highlighting the risks associated with non-fatal strangulation. This article provides an overview of the new non-fatal strangulation offences in Victoria, their background, legal definitions, penalties, and defences.
Non-Fatal Strangulation Background
In 2011, Joy Rowley was strangled to death by her former partner. Their relationship satisfied the definition of ‘family member’ and, due to the physical, emotional and psychological abuse she had been subjected to leading up to her murder, the conduct fell under the definition of ‘family violence’ in the Family Violence Protection Act 2008.
In light of the release of the Royal Commission into Family Violence’s report and following a formal request from Ms Rowley’s children, State Coroner Judge Sarah Hinchey announced her intention to hold an inquest into the matter, which was published in July 2018 (Finding into death with inquest: Joy Maree Rowley).
At the inquest, it was heard that there were at least eight times before Ms Rowley’s murder that actions by Victoria Police could have changed the course of events leading to her death. In the inquest report, Coroner Hinchey called for Victoria Police to conduct systemic reviews of all cases of family-violence-related deaths where there was a known history of family violence between the deceased person and the perpetrator.
Judge Hinchey’s findings indicated that victims of non-fatal strangulation were significantly more likely to be killed in subsequent instances of family violence. Consequently, one of the key recommendations was the introduction of a stand-alone offence for strangulation, suffocation, or choking. This led to the passage of the Crimes Amendment (Non-fatal Strangulation) Act 2024, which commenced on 13 October 2024.
As explained by Attorney-General the Hon. Jaclyn Symes in the media release accompanying the Bill’s introduction, the proposed reforms:
“… have been developed to better protect victim-survivors, including those who may not sustain any visible injuries, and to hold perpetrators to account who use strangulation to exert power and control over their family member. Establishing non-fatal strangulation as a standalone offence provides a clear indication to the Victorian community of the severity of this conduct in family violence contexts.”
Victoria was the last Australian jurisdiction to introduce a standalone non-fatal strangulation offence, following other states and territories such as New South Wales, Queensland, and Tasmania. Internationally, jurisdictions including New Zealand, Canada, England and Wales, Northern Ireland, and the United States have also recognised the need for specific legislation addressing non-fatal strangulation.
Amending Legislation Overview
The Crimes Amendment (Non-fatal Strangulation) Act 2023 establishes the following two new criminal offences in the Crimes Act 1958, commencing on 13 October 2024:
Section 34AD(1)
- A person (A) commits non-fatal strangulation intentionally causing injury if:
- A intentionally and without lawful excuse chokes, strangles or suffocates another person (B); and
- A intends the choking, strangling or suffocation to cause an injury to B; and
- the choking, strangling or suffocation causes an injury to B; and
- A is a family member of B.
It is important to recognise that ‘injury’ can include ‘unconsciousness’ or ‘substantial pain’ (see definition of ‘physical injury’ in section 15 of the Crimes Act 1958, or see ‘What is Injury?’ for more).
The maximum penalty for this offence is 10 years imprisonment.
Section 34AE(1)
- A person (A) commits non-fatal strangulation if:
- A intentionally and without lawful excuse chokes, strangles or suffocates another person (B); and
- A is a family member of B.
The maximum penalty for this offence is 5 years imprisonment.
Note that a mistaken but honest and reasonable belief that A was not a family member of B is not a defence to an offence against sections 34AD(1) or 34AE(1) (see s34AK).
Guiding Principles
The ‘guiding principles’ of the Crimes Amendment (Non-fatal Strangulation) Act 2024 indicate that the following should be considered by the courts when interpreting the legislation:
- non-fatal strangulation by a current or former intimate partner indicates that a person is, statistically, significantly more likely to be killed by the current or former intimate partner;
- within the context of family violence, non-fatal strangulation can indicate an ongoing and escalating pattern of coercive and controlling behaviour by a perpetrator;
- an atmosphere of fear and compliance can be created by even very short or individual instances of non-fatal strangulation and can demonstrate the perpetrator’s physical dominance and control over the victim; and
- non-fatal strangulation does not always leave physical signs/injuries and can result in physical signs/injuries that appear after weeks or months have passed (s34AC).
Definitions and Key Elements
Chokes, strangles or suffocates
The amendments inserted a new definitions in s34AB of the Crimes Act 1958. Under this section, ‘chokes, strangles or suffocates’ is defined as doing any of the following things:
- applying pressure to the front or sides of a person’s neck;
- obstructing any part of, or interfering with the operation of, a person’s respiratory system or accessory systems of respiration;
- impeding a person’s respiration.
This definition is non-exhaustive and captures a broad range of conduct. As explained by Minister Carbines in the second reading speach:
“Some Australian jurisdictions that have stand-alone offences have seen courts narrowly interpret the terms ‘choke, strangle or suffocate’ where these terms are not clearly defined. These narrow interpretations have imposed inappropriately high evidentiary burdens on the prosecution and may serve to further traumatise victim-survivors. The broad definition used in this Bill aims to avoid this issue.”
Injury
‘Injury’ has the same meaning as in section 15 of the Crimes Act 1958 and includes ‘physical injury’ and ‘harm to mental health’. ‘Physical injury’ encompasses unconsciousness, disfigurement, substantial pain, infection, and impairment of bodily function. Harm to mental health includes psychological harm but excludes emotions like distress, grief, fear, or anger unless they result in psychological harm.
Family member
The term ‘family member’ here has the meaning given in the Family Violence Protection Act 2008 (s34AB(1)). Accordingly, the new offences do not capture non-fatal strangulation that may occur in sexual assault cases if it arises outside the family context. However, non-fatal strangulation that falls outside the scope of family violence continues to be captured by existing offences, including causing injury offences and assault.
Consent
The new offences accommodate the notion of consensual non-fatal strangulation that occurs within the context of sexual relationships, and requires that an affirmative consent model be in place. In line with sexual offence reforms introduced in 2023, consent must be free and voluntary agreement and must be communicated (s34AG). Under this model (called affirmative consent), a lack of resistance from an intimate partner, whether verbal or physical, does not establish consent (s34AG).
Further, consent cannot be assumed even if a person has previously consented to the same sexual activity with a different person or with the same person at a different time, or to different sexual activity with the same or a different person (s34AG). As noted by Minister Carbines, this consent model aims to recognise that sexual non-fatal strangulation is an increasingly common practice, particularly amongst young people.
Penalties
The maximum penalty for non-fatal strangulation is five years imprisonment, while the maximum penalty for non-fatal strangulation causing injury is ten years imprisonment. These penalties align with those for assault and intentionally causing injury, respectively.
Defences
The legislation allows for several defences:
- Lawful Excuse: Common law defences such as lawful arrest and conduct in the course of everyday life.
- Self-Defence, Duress, and Emergency: Statutory defences include self-defence, duress, and sudden or extraordinary emergency.
- Consent: For non-fatal strangulation without injury, a defence of consent is available. In the context of sexual activity, the statutory consent defence requires affirmative consent. However, this defence is not available for non-fatal strangulation causing injury.
For an offence against section 34AD(1) or 34AE(1), it is not a defence to a charge that, at the time of the conduct constituting the offence, the accused was under a mistaken but honest and reasonable belief that the victim was not a family member (s34AK).
Conclusion
The introduction of the Crimes Amendment (Non-fatal Strangulation) Act 2024 amended the Crimes Act 1958 to create two new offences in Victoria of non-fatal strangulation against a family member.
These significant changes are intended to improve Victoria’s response to non-fatal strangulation which is recognised as a significant indicator of risk of future serious harm, including homicide.
These laws not only provide a clearer legal framework for prosecuting such offences but also send a strong message that such conduct is subject to severe penalties.
If you or someone you know is affected by these new laws, it is crucial to seek expert legal advice to navigate the complexities of the legislation and ensure the best possible outcome.
