Choking Without Consent: Criminal Offence In NSW

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:

• You intentionally choked, suffocated, or strangled another individual.

Regarding section 37(2):

• It must be proven that, without consent:
• You intentionally choked, suffocated, or strangled another individual
• You recklessly caused that person to become unconscious, unresponsive, or unable to resist.