Warren Brookbanks: Strangulation law unlikely to be violence deterrent

Justice Minister Judith Collins has announced her intention to look at introducing an offence of attempted strangulation in a bid to tackle domestic violence.

While this proposal is new for New Zealand law, offences of attempted strangulation have been used in other countries for some years. Since 2011, 34 US states have had laws specifically prohibiting strangulation, often within the context of domestic abuse.

Penalties, however, vary substantially, ranging from up to 20 years imprisonment in Massachusetts, to at least two years in Mississippi. In some states strangulation is prosecuted as a separate offence, while in others it is treated as an aggravated form of assault, warranting a more severe penalty.

New South Wales this year introduced an amendment to its Crimes Act 1900 creating a new offence of intentionally choking, suffocating or strangling another person so as to render the other person unconscious, insensible or incapable of resistance. It carries a maximum penalty of imprisonment for 10 years.

The rationale for such laws appears to be that in many cases of domestic violence the alleged assault has involved the offender manually strangling his or her victim in circumstances that might have resulted in the death of the victim.

Strangulation is by its nature a continuing act, so that death is a possible, but not a necessary outcome.

But often under existing law, if there is a prosecution, it may involve a charge of simple assault, not reflecting the nature and severity of the attack nor the terror of the victim's experience.

However, to create a crime of attempted strangulation would not be without its problems. One issue is how are we to define "attempted strangulation"?

In some US states it is defined by the need for prosecutors to prove that "serious physical injury" was caused.

In others the offence is defined in terms of the intent of the offender, whether or not serious injury results.

In other words, should the symbolism of what is involved in deliberate strangulation and suffocation be the paramount consideration, or should the proven results of deliberately impeding a person's normal breathing be the critical consideration?

Where death does result, the offences of murder and manslaughter are available in appropriate cases. Is a new offence needed in those cases where strangulation does not result in death?

US experience suggests that in most cases, attempted strangulation occurs when a couple is face-to-face in an argument.

It is thus an intensely personal crime. It is not usually premeditated. For this reason it may not be readily deterred.

If legislation is unlikely to deter this type of behaviour, what other criminal justice purposes will it serve? Will harsher consequences for offenders who assault in this way prevent future deaths or serious injuries?

These and many other issues will need to be carefully teased out in any proposal to add yet more crimes to our criminal code.

Warren Brookbanks is a Professor of Law at the University of Auckland.