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Strangulation: The Legal Response

5 Aug 2014

Although many Australian women and men will experience some type of physical or sexual assault in their lifetime, domestic violence often goes unreported or is not spoken about.

In 2014, it is reported that one woman dies each week as a result of domestic violence and that a woman is hospitalised every three hours in Australia due to physical assault.

Furthermore, it is gradually being recognised that strangulation is common in domestic abuse cases, however its seriousness is often minimised by the law enforcement and medical communities since most victims survive.

Although strangulation can leave victims close to death, unlike other acts of violence that produce a black eye or broken nose, it generally leaves few, if any, external signs of injury. This makes it difficult to prove an assault charge.

An attempted murder charge is also hard to sustain in cases where suspects intend to scare rather than kill. Because of this, advocates say that where an incident of strangulation is charged as a criminal offence it is likely to be charged as a minor assault and this approach doesn’t reflect the act's severity or carry meaningful punishment.

For these reasons, domestic violence researchers at The University of Queensland are calling for consideration of reform of Criminal statuses to identify this strangulation as a specific offence.

Research published by Professor Heather Douglas and Dr Robin Fitzgerald advocates for the recognition of strangulation, sometimes referred to erroneously as ‘choking’, to be identified as a form of domestic violence in civil protection order legislation.

Professor Douglas said allegations of strangulation were not uncommon in domestic violence cases, and are considered a ‘red flag’ for future serious abuse and fatality.

“In Australia, no domestic violence legislation highlights non-fatal strangulation as a serious risk factor,” Professor Douglas said.

“Because strangulation injuries leave no visible mark or visible injuries may only become evident days later, police, doctors and victims often underplay the seriousness of the offence or do not connect the initial strangulation event with the injuries.”

Professor Douglas said correctly identifying and naming non-fatal strangulation on police and medical records was extremely important.

“It ensures possible injuries are identified and responded to and mitigates risk of further serious injury or death.”

“In the US most states now have strangulation offences – maybe this is what we need in Australia.”

“This may address a gap in the legislative landscape, ensure that appropriate charges are laid and penalties are applied, assist in highlighting the issue, and help to ensure records of strangulation are kept, leading to better risk assessment,” she said.

Professor Douglas has been awarded an Australian Research Council Future Fellowship for $944,347 over four years for a longitudinal study on how women from diverse backgrounds access the law in domestic violence situations.

“The project aims to highlight what contributes to women’s satisfaction and sense of safety resulting from legal interventions over time, to make an important contribution to community education, policy implementation and law reform, both within Australia and internationally,” she said.

Professor Douglas plans to interview women on three separate occasions over three years to find out if their experience of using law changes over time. This is the first Australian longitudinal study to examine women’s engagement with law as a response to domestic violence.

Professor Douglas and Dr Fitzgerald’s paper Strangulation, Domestic Violence and the Legal Response was recently published in the Sydney Law Review and is available online athttp://www.austlii.edu.au/au/journals/SydLRev/2014/11.html

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