An element of the revised Law Commission work programme 2014/15 issued by the Minister of Justice included creation of a separate crime of non-fatal strangulation.
In its fourth Annual Report the Family Violence Death Review Committee noted that non-fatal strangulation “is an important lethality risk indicator and the Committee believes it must be considered a “red flag” for future serious abuse and fatality”. The Committee accordingly recommended that “the government consider an amendment to the Crimes Act to include non-fatal strangulation as a separate crime under Part 8 of the Crimes Act 1961”.
Terms of reference
The Law Commission will consider:
- The rationale for establishing a crime of non-fatal strangulation, with reference to the recommendations of the Family Violence Death Review Committee and the experience of overseas jurisdictions.
- If a crime of non-fatal strangulation is to be created, the appropriate elements of the offence and its maximum penalty, with reference to other offences against the person in the Crimes Act 1961.
- Whether a crime of non-fatal strangulation should be created or whether there are other (legislative or operational) options that would better address the concerns the proposed crime is intended to address.
This reference forms part of a range of family violence initiatives that the Minister of Justice is initiating. During the review this reference will consult with the other family violence initiatives and where possible provide integrated recommendations.
This reference is to focus on the creation of the new crime in the family violence context and is not to consider the general law of assault or strangulation, unless necessary to do so.
The reference will be undertaken by:
- The Law Commission issuing for targeted consultation a Draft Final Report after undertaking preliminary research which will include assessing overseas experience and best practice.
- Consulting with targeted agencies within New Zealand including Police, Judiciary, Ministry of Justice, Family Violence Death Review Committee, New Zealand Law Society and other knowledgeable agencies.
- Engaging with an expert panel, made up of both public and non-public sector advisers, during the reference.
The Commission will report to the Minister by the 31st of March 2016.
Strangulation: The case for a new offence (NZLC R138, 2016)
In its report Strangulation: The case for a new offence (NZLC R138, 2016), the Law Commission makes seven recommendations to improve the way that the criminal justice system responds to strangulation in family violence circumstances. In particular, it recommends that a specific offence of strangulation should be enacted.
Strangulation is a common and particularly harmful form of family violence. A victim of family violence who is strangled has a much greater risk of a future fatal attack by the perpetrator than a victim who was not strangled.
The Law Commission found that the risks following strangulation are not well understood by police, judges and others who assist victims of family violence. This puts the victims at risk of further violence, including a fatal attack.
In at least half of all cases, strangulation does not result in an obvious external injury, even though the victim may have suffered internal injuries or serious mental harm. The lack of obvious external injuries makes it difficult to lay serious charges against the perpetrator. The Law Commission found that in these cases, the abusers are often charged with a low-level offence. This means that the perpetrators of strangulation are often getting a much lower sentence than they deserve.
The Law Commission recommended that a new offence of strangulation should be enacted. That offence should require proof of strangulation, but not proof of injury. It should carry a maximum term of imprisonment of seven years imprisonment.
The Law Commission acknowledges the valuable contribution that former High Court Judge Ronald Young made to this review as a member of the expert advisory group. His name was in error omitted from the acknowledgements in the Report. We apologise for the error, which is ours.
The Government accepted the Commission’s recommendations:
- That Part 8 of the Crimes Act 1961 should be amended to make a person who strangles or suffocates another person liable to imprisonment for a term not exceeding seven years.
- That the Crimes Act should be amended to require that, if a person pleads guilty to the strangulation offence or is found guilty of the strangulation offence and the court is satisfied that the offence was a family violence offence, the court must direct that the offence be recorded on the person’s criminal record as a family violence offence.
- As to administrative practice, that:
- the Police family violence incident report (POL 1310) should be amended to include questions designed to screen for strangulation.
- the Police National Intelligence Application (NIA) should be amended to record specifically whether or not a family violence incident included an allegation of strangulation.
- Police who attend family violence call-outs should receive education about the prevalence, signs, symptoms and lethality of strangulation. Similar education should also be offered to judges who undertake criminal law or family law work.
The Government did not accept the Law Commission’s recommendation that section 9 of the Sentencing Act 2002 should be amended to include strangulation as an aggravating factor that must be taken into account in sentencing.
The Government accepted a modified form of the Commission’s recommendation for the definition of “strangles or suffocates” in the new offence. In the modified form, the offence would cover a person intentionally or recklessly impeding breathing or blood circulation by applying force to the victim’s throat, neck, nose or mouth.
Most of the report’s key recommendations were either included in the Family Violence Act 2018 (recommendations 1-3) or were accepted as administrative practices to be adopted (recommendations 5-7). Recommendation 4 – that strangulation should be considered an aggravating factor in sentencing – was recommended in the Cabinet paper but was not accepted by Cabinet, which considered the new offence was sufficient when combined with the guidance in the Sentencing Act and precedent decisions.