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In recent years, the legal landscape has seen a growing emphasis on recognising and addressing various forms of violence, especially those within intimate relationships. One such crucial issue is the act of choking or strangulation without consent. This act, once brushed off as a mere component of physical violence, has gained significant attention in New South Wales.
Choking and strangulation are terms often used interchangeably but entail distinct differences in their meaning. Choking is the restriction of airflow due to an obstruction in the throat or windpipe. It’s a mechanism that can lead to asphyxia, wherein the body is deprived of oxygen, potentially causing unconsciousness or death. Strangulation, on the other hand, involves the intentional application of external force to the neck, compressing the blood vessels and air passages, ultimately impeding oxygen flow to the brain.
In both cases, the intent is to dominate, control, or harm the victim by putting their life at risk. These actions are often manifestations of power and control within abusive relationships and can have severe physical and psychological consequences for the survivor.
The seriousness of choking and strangulation in the context of intimate partner violence has prompted many legal systems to recognise them as distinct criminal offences. NSW is no exception, with its legislative framework now addressing these acts as grave criminal offences due to their potentially life-threatening nature.
In 2018, amendments were made to the Crimes Act 1900 (NSW) to introduce specific provisions relating to choking, strangulation, and suffocation. Section 37B of the Act defines choking or strangulation as an offence, categorising it as an aggravated form of assault. This means that even if no physical injuries are apparent, the act of choking or strangulation alone is enough to constitute a criminal offence, highlighting the gravity of these actions.
The introduction of these legal provisions reflects a growing recognition of the dangers posed by these acts and acknowledges the need to address them as distinct offences rather than minor components of broader assault cases.
To comprehend the significance of choking and strangulation within abusive relationships, it’s essential to recognise the intent behind these actions and the dynamics at play. Choking and strangulation are often not random acts of violence; they are deliberate attempts to exert control and instil fear in the victim.
The Law on Choking Without Consent
According to Section 37(1A) of the Crimes Act 1900 (NSW), it is a criminal offence for a person to intentionally choke, suffocate, or strangle another person without their consent. This offense does not require the victim to be rendered unconscious or unable to resist. The maximum punishment for this offence is 5 years in prison.
On the other hand, Section 37(1) of the Act states that a person is guilty of an offense if they intentionally choke, suffocate, or strangle another person in a way that renders them unconscious, insensible, or incapable of resistance. In addition, if the person is reckless about rendering the other person unconscious, insensible, or incapable of resistance, they are also considered guilty. The maximum penalty for this offense is 10 years in prison.
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 The Prosecution Establish?
In order to secure a conviction for choking, suffocation, and strangulation, the prosecution must provide evidence beyond a reasonable doubt for each of the following points:
Regarding section 37(1),
It must be proven that, without consent:
Regarding section 37(2):
The criminalisation of choking and strangulation sends a powerful message that society will not tolerate such acts of violence, especially within intimate relationships. Police in NSW play a pivotal role in responding to cases of choking or strangulation without consent.
Police officers undergo training to recognise the signs of choking and strangulation, even when visible injuries are absent. This training equips them to understand the potentially lethal consequences of these actions and take appropriate action to protect the survivor and hold the perpetrator accountable.
Moreover, support systems for survivors of domestic violence have also evolved to address the nuances of choking and strangulation. Specialised counselling services, legal assistance, and medical interventions are now tailored to the unique needs of survivors who have experienced these forms of violence.
While legal recognition and enforcement are crucial steps in combating choking and strangulation, challenges persist in eradicating these behaviours completely.
Choking and strangulation without consent are now firmly established as criminal offences in NSW, reflecting a broader societal shift toward recognising and addressing intimate partner violence. Understanding the distinct meanings of choking and strangulation, along with their intent and dynamics, is crucial in combating these acts effectively.
If you have been charged with a choking without consent offence in NSW, contact our avo specialist lawyers today. We can provide you with free legal advise for 15 minutes and review your case.