Amicus Curiae: A New Law? A Standalone Strangulation Offence Awakens

Ashley Wainstein, Content Contributor

Labour party member Kelvin Davis has put forward a proposed members’ bill with the intention of amending the Crimes Act to make non-fatal strangulation a standalone criminal offence. The Law Commission is recommending the same course of action, having found that in cases where strangulation did not result in obvious external injury, perpetrators of the crime were charged with low level offences. In their view, these individuals were being penalised less harshly than they deserved.

Currently, a perpetrator can only be convicted on the basis of general assault charges, commonly “assault by a male on a female”. However, this does not often result in conviction of the assailant due to the action not yet being properly defined by law. Whether the current law is inadequate to deal with offences of this kind has been a point of contention.

For this reason, the impetus behind this amendment is to increase public awareness and understanding, and to assist in the complete prosecution of perpetrators. By making the offence specific, it aims to highlight the severity and potential risk of strangulation leading to further violent crimes against the person in domestic relationships. It has been found that many non-fatal strangulation victims have not only been subject to this specific form of assault multiple times, but that this kind of assault has also led onto greater, more violent actions, and in many cases, has preceded the fatal end of the victim. Thus, non-fatal strangulation often serves as a precursor to more damaging harm, both psychological and physical.

The proposal to make non-fatal strangulation a criminal offence can be viewed as a preventative measure, as it makes explicitly clear the unacceptable nature of the offence, thereby deterring possible offenders. It can also be seen as punitive by illustrating the abhorrent nature of the offence, and making any offence of this kind and severity punishable by law. Furthermore, should strangulation be adopted as a standalone criminal offence, New Zealand would be brought into alignment with other countries with similar strangulation laws, such as the United Kingdom and America. Adherence to these international standards could arguably lead to a better deliverance of justice within New Zealand.

The development of this law could be interpreted as having a more victim-based approach towards criminal prosecution. The proposed law would further enforce the rights of the victim, and not only aim to punish the perpetrator for breach of individual rights, but also make an example of them. By sanctioning strangulation offences it makes clear the true nature of the offence and the extent of the issue to the courts. This further advocates for the protection of the rights of victims and it makes clear to society that there is no tolerance for this type of behaviour.

With this information in mind, it is necessary to review the possible concerns relating to the creation of a standalone offence of this kind. Unless the offence is explicitly outlined and the case is materially similar to the law, the courts may find difficulty in reviewing strangulation offences due to its brief and often case-reliant nature. There are issues surrounding cases involving consensual strangulation, and how they would be dealt with under this law. Clear wording in the legislation would be necessary to prevent heightened numbers of criminal convictions, or a repeat of the infamous R v Brown case.

The decision then remains as to whether concerns of this type are enough to warrant rejecting the proposed amendment altogether, or if the issue does not sanction an exclusive interference of the criminal law. Perhaps it is essential, considering the austerity and the force of strangulation cases, to be mindful of what the current law is allowing and the message that is communicated to both victims and potential assailants. It is consistent with the rights of victims and the overall safety of individuals that there is a sufficient measure of accountability and prevention in order to properly protect from harm. Therefore, there is weight behind the interpretation of this proposal as imperative in ensuring an appropriate deliverance of justice to society and the more intrinsic concerns regarding criminality, such as the matter of public safety. Whether Davis’s bill will have an appropriate impact in Parliament remains to be seen.


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