A Comparative Analysis of Non-Fatal Strangulation Offences: Will the Proposed s. 75A Serious Crime Act 2015 Work for Victims of Domestic Violence and Abuse?
| Author | Vanessa Bettinson |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/00220183221086426 |
| Subject Matter | Articles |
A Comparative Analysis of
Non-Fatal Strangulation Offences:
Will the Proposed s. 75A Serious
Crime Act 2015 Work for Victims
of Domestic Violence and Abuse?
Vanessa Bettinson
Leicester De Montfort University, UK
Abstract
This article examines the new offence of Non-fatal Strangulation s. 75A Serious CrimeAct
2015, inserted by s. 70 Domestic Abuse Act 2021 and concludes that further re-drafting
should be considered. The creation of a specific crime of non-fatal strangulation is an issue pre-
viously considered and legislated for by a number of legal jurisdictions and their experiences
are a source that England and Wales should have drawn upon to avoid further legislative
reform in this area. This has not happened and s. 75A, prompted by the call to better protect
victims of domestic violence and abuse, has been drafted in a manner that will limit its ability to
achieve this aim. This is evident by the limited language to describe and define the prohibited
conduct and the complexity arising from the inclusion of a defence of consent in some circum-
stances. Given the potential educative function this offence has, these aspects of the new
offence are a significant blow to campaigners seeking improvements to the criminal justice
response to domestic violence and abuse. This article outlines the relevance of non-fatal stran-
gulation (NFS) to the social problem of domestic violence and abuse and makes the argument
that a new specific offence is justified. It then explores from selected legal jurisdictions exam-
ples of non-fatal strangulation (NFS) offences to draw out elements that have either assisted or
hindered the prosecution of these cases. This comparative approach provides the basis for ana-
lysis of the s. 75A offence to determine what challenges it will present to the prosecutorial
authorities.
Keywords
Strangulation, domestic violence and abuse, coercive control, offences against the person,
comparative offences
Corresponding author:
Vanessa Bettinson, Criminal Law and Criminal Justice, Leicester De Montfort University, Gateway House, Leicester LE1 9BH, UK.
Email: vbettinson@dmu.ac.uk
Article
The Journal of Criminal Law
2022, Vol. 86(2) 75–93
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183221086426
journals.sagepub.com/home/clj
Edwards argued in 2015 that the dangerousness of strangulation is not recognised by the courts in
England and Wales and debates that consider legal reform in relation to this method of harm are long
overdue.
1
Progress has now been forthcoming with the introduction of s. 75A Serious Crime Act
2015 following the enactment of s. 70 Domestic Abuse Act 2021.
2
The creation of a specific crime of
non-fatal strangulation (NFS) is an issue previously considered and legislated for in a number of legal
jurisdictions and it is a welcome move that England and Wales have sought to follow suit.
Disappointingly, the experiences of these jurisdictions and their drafting of NFS offences appear to
have been overlooked. S. 75A, prompted by the call to better protect victims of domestic violence and
abuse, has been drafted in a manner that will limit its ability to achieve this aim.
3
This is evident by
the limited language to describe and define the prohibited conduct and the complexity arising from the
inclusion of a defence of consent in some circumstances. Given the potential educative function this
offence has, these aspects of the new offence are a significant blow to campaigners seeking improvements
to the criminal justice response to domestic violence and abuse. This article will outline the relevance of
NFS to the social problem of domestic violence and abuse and make the argument that a new specific
offence is justified. It will then explore from selected legal jurisdictions examples of NFS offences to
draw out elements that have either assisted or hindered the prosecution of these cases. This comparative
approach provides the basis for analysis of the s. 75A offence to determine what challenges it will present
to the prosecutorial authorities.
The Problem of NFS in Cases of Domestic Violence and Abuse
Strangulation, asphyxiation, choking and suffocation are terms associated with NFS. Strangulation and
asphyxiation are not synonymous as Busby clarifies.
4
Strangulation is the most dangerous activity and
occurs when external pressure is applied to the trachea or carotid artery with either hands or ties. This
impedes the blood and oxygen flow to the brain.
5
Asphyxiation involves the suffocation of the victim
by blocking the mouth and nose with a hand or item such as a pillow or plastic bag. In this way
oxygen intake to the brain is impeded, however, blood is allowed to flow to the brain.
6
Choking in
the form of a chokehold occurs where a person uses part of their body such as a knee or arm to restrict
the neck, resulting in the same effect as strangulation. Choking also refers to the placing of a physical
obstruction in the throat. Oxygen intake is impeded, although blood continues to flow to the brain.
7
Each method of NFS can be lethal with strangulation leading to death in an alarmingly short time com-
pared to asphyxiation. Distinguishing between these terms is important as they are different experien-
tially. That NFS disproportionately harms women is illustrated by homicide figures and Yardley has
calculated that women make up nearly three-quarters of all homicide victims killed by these methods.
8
Whilst NFS is a gendered crime, the Domestic Abuse Act 2021 itself is gender-neutral, an approach
inconsistent with the Council of Europe Convention on preventing and combatting violence against
1. S Edwards, ‘The Strangulation of Female Partners’(2015) 12 Crim L Rev 949.
2. Home Office, Policy Paper: Domestic Abuse Act 2021: overarching factsheet (2021) expects all provsions to be brough into force
during 2021/22 by commencement regulations.
3. The term domestic violence and abuse is used throughout as the term domestic abuse can have the effect of minimising the
experiences of victims. See J Aldridge, ‘“Not an Either/or Situation”: The Minimization of Violence Against Women in
United Kingdom “Domestic Abuse”Policy’(2020) Violence Against Women 1.
4. K Busby, ‘Every Breath You Take: Erotic Asphyxiation, Vengeful Wives and Other Enduring Myths in Spousal Sexual Assault
Prosecutions’(2012) 24 Can J Women Law 328.
5. Ibid at 338.
6. Ibid.
7. Ibid.
8. E Yardley, ‘The Killing of Women in ‘Sex Games Gone Wrong’: An Analysis of Femicides in Great Britain 2000–2018’(2020)
Violence Against Women DOI: 10.1177/1077801220966956.
76 The Journal of Criminal Law 86(2)
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