Victoria Set to Introduce Discrete Criminal Offence of Non-Fatal Strangulation

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Victoria is set to strengthen criminal laws against domestic violence by making non-fatal strangulation a discrete offence.

The new laws will bring Victoria into line with other states, including New South Wales, the Act and Queensland.

The impetus for the move initially gained momentum with the killing of Joy Rowley who was strangled to death by her former partner, James Martin Mulhall, at her home in Rye, Victoria in October 2011.

Just months before the killing, Joy’s former partner had choked her unconscious.

Mr Mulhall is now serving a 16-year prison sentence for the offence of murder.

An inquest into Joy’s death was highly critical of the inaction of police, who ultimately acknowledged the fact there were multiple times they could have changed the course of events leading up to her murder.

But the momentum for change subsided once the tragedy left the public spotlight, only to re-emerge given the moves by other states.

The ultimate form of power and control

The Coroner who investigated Joy Rowley’s death asserted that a discrete offence strangulation could “significantly help” such abuse is treated as seriously as it should.

Research suggests that non-fatal strangulation is one of the most serious “red flags” when it comes to escalating domestic violence, and has even been considered one of the ultimate forms of power and control.

The same research determines that a person who survives non-fatal strangulation by a current or former partner is seven times more likely to be subsequently seriously injured or murdered by that partner.

Non-fatal strangulation

The Crimes Amendment (non-fatal strangulation) bill will be introduced to Victorian parliament in the coming days.

The reforms create an offence of intentional non-fatal strangulation, which does not require proof of injury and will carry a maximum prison term of five years.

The more serious offence of non-fatal strangulation intentionally causing injury will carry a maximum penalty of 10 years.

The laws provide a ‘consent’ defence which can be used for a first offence for people who provide affirmative consent to non-fatal strangulation during sexual activity where no intentional injury has occurred.

Offences relating to choking, suffocation or strangulation in New South Wales

Choking, suffocation or strangulation is an offence under section 37 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Choked, suffocated or strangled another person,
  2. Did so intentionally, and
  3. Did not have the other person’s consent to do so.

The maximum penalty increases to 10 years in prison where the defendant renders the other person unconscious, insensible or incapable of resistance, and is reckless as to rendering them in that state.

The maximum increases to 25 years where the defendant renders the other person unconscious, insensible or incapable of resistance, and does so in order to commit an indictable offence.

An indictable offence is one that is capable of being referred to a higher court, such as the District Court, which generally applies to offences carrying a maximum penalty of more than 2 years in prison.

Defences to the choking, suffocation or strangulation charges include self defence and duress.

Animals and domestic violence

The Victorian Government is also considering a motion put forward by the Animal Justice party to consider changing the Family Violence Protection Act 2008 to include an animal cruelty offence.

A similar conversation about pets in abusive domestic situations is being had in New South Wales, yet there is currently no movement on a change in law.

According to figures, up to 70% of domestic violence victim-survivors report abuse of a companion or other animal by the perpetrator. Studies show that between 18-48% of victims‑survivors are so concerned for their animal’s safety that they delay or avoid leaving abusive relationships.

An even higher figure of 68% delayed leaving where the animal had already been abused.

While it is excellent to see the strengthening of laws to deal with domestic and family violence offences, there is still some concern that laws are state-based and given the epidemic proportions of domestic violence across the nation, there is a growing consensus that laws should be nationally enacted, making all states and territories a united front as far as what’s legal and not, as we tackle what has become one of the biggest social problems facing the country.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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