Domestic Violence, Sex, Strangulation and the ‘Blurry’ Question of Consent
| Published date | 01 February 2024 |
| DOI | http://doi.org/10.1177/00220183241233455 |
| Author | Heather Douglas,Leah Sharman,Robin Fitzgerald |
| Date | 01 February 2024 |
Domestic Violence, Sex,
Strangulation and the ‘Blurry’
Question of Consent
Heather Douglas
The University of Melbourne, Australia
Leah Sharman
The University of Melbourne, Australia
Robin Fitzgerald
The University of Queensland, Australia
Abstract
A stand-alone strangulation offence was introduced in Queensland, Australia in 2016. One of
the elements of the Queensland strangulation offence is that the victim did not consentto the
strangulation. This paper reviews the harms and dangers associated with strangulation before
overviewing the debates about the use of strangulation during sex. Drawing on focus group
discussions conducted with domestic violence support workers and men’s behaviour change
workers, we discuss four overlapping themes identified in the discussions.These were percep-
tions that: strangulation during sex is normalised; consent is not informed; it happens in the
context of coercive control; and the requirement of consent opens a loophole in the strangu-
lation offence. Considering the issues raised, and the clear risks and harms, we suggest that
consideration should be given to whether it is ever possible to consent to strangulation and
we consider possible reforms such as following the two-tiered approaches to consent used
in the England and Wales law and elsewhere in Australia. We also conclude that law reforms
such as these are partial solutions and there is significant need for more community education
about the risks and harms of strangulation.
Keywords
strangulation, choking, consent, domestic violence, sexual violence, qualitative research
Corresponding author:
Heather Douglas, Melbourne Law School, The University of Melbourne, Pelham Street, Carlton,Victoria, Australia.
Email: douglash@unimelb.edu.au
Article
The Journal of Criminal Law
2024, Vol. 88(1) 48–66
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241233455
journals.sagepub.com/home/clj
Introduction
In recognition of the risks and dangers associated with strangulation in the context of domestic violence,
stand-alone offences of strangulation have been introduced in the United States, England and Wales,
Canada, New Zealand and Australian states and territories.
1
In 2016 Queensland, Australia introduced
a strangulation offence. The offence only applies where strangulation is used in circumstances where
the parties are in a ‘domestic relationship’
2
or where it is associated with domestic violence.
3
The
absence of the complainant’s consent –‘without the other person’s consent’–is an explicitly stated
element of the Queensland strangulation offence. To date, there has been no consideration about how
the requirement of a lack of consent affects the application of the offence, the responsibility of those
accused of strangulation regarding consent or how the strangulation offence interacts with sexual
offences. In the context of growing debates about the use of strangulation during sex,
4
it is perhaps sur-
prising that consent to strangulation has not been considered by the courts in Queensland.
5
However, the
issue is a complex one and the differe nces between the, arguably sometimes, consensual use of st rangu-
lation in sexual encounters versus its no n-consensual use as an aspect of domestic abuse may be difficult
to untangle. In this article, we ai m to shed light on this complicated issue. We draw on focus group s with
participants working in both domes tic and family violence support services and men’s behaviour chan ge
programs to explore how strangul ation during sex is raised by their clients who have experiencedor per-
petrated domestic abuse. The voices of these workers are important because these workers often assist
clients to navigate the complex terr ain of sex, strangulation, and consent in the context of domestic vio-
lence. In the first section we review the harms and dangers associated with strangulation before over-
viewing the debates about the use of strangulation during sex. We then explain the Queensland
context and offence before considering the results from our focus groups. We identify and consider
key themes raised by the participants in the focus groups and, in light of the issues raised, we conclude
with some recommendations for pr actice change and law reform. We conclude that there continue s to be
a significant need for more community education about the risks and harms of strangulation. We also
suggest that, given the risks and harms associated with strangulation, consideration should be given
to whether it is ever legally permissible to strangle another person and, connected to this, the need
for legal reform.
The Harms and Risks of Strangulation
Irrespective of consent or the lack thereof, the harms and risks associated with strangulation are well-
documented. Research in the USA has provided evidence as to the timing of unconsciousness and fatality
resulting from strangulation.
6
After examining filmed hangings, researchers observed that loss of
1.S. Edwards and H Douglas, ‘The criminalisation of a dangerous form of coercive control: Non-fatal Strangulationin England and
Wales and Australia’, (2021) 8 (1) Journal of International and Comparative Law 87.
2.This includes both a current and former intimate personal relationship), a family relationship or an informal care relationship, see
Domestic and Family Violence Protection Act 2012 (Qld) ss.13–20.
3. Criminal Code, 1899 (Qld) s. 315A.
4.See generally research on this topic lead by Debby Herbenick in the USA, eg: D. Herbenick, L. Guerra-Reyes, C. Patterson, Y.R.
Rosenstock Gonzalez, C. Wagner, and N. Zounlome ‘"It was scary, but then it was kind of exciting": Young women’s experi-
ences with choking during sex’(2022) 51(2) Archives of Sexual Behavior 1103; D. Herbenick, T. Fu, C. Patterson, Y.R.
Rosenstock Gonzalez, M. Luetke, D. Svetina Valdivia, H. Eastman-Mueller, L. Guerra-Reyes, and M. Rosenberg ‘Prevalence
and characteristics of choking/strangulation during sex: Findings from a probability survey of undergraduate students’(2023)
71(4) Journal of American College Health 1059.
5.As we discuss below two cases, indirect consideration through sex cases, see R v Brown [2020] QCA159 and R v LAU [2022]
QCA 37.
6. A. Sauvagneau, R. LaHarpe, D. King, G. Dowling, S. Andrews, S. Kelly, C. Ambrosi, J. Guay and V. Geberth, ‘Agonal
Sequences in 14 Filmed Hangings With Comments on the Role of the Type of Suspension, Ischemic Habituation, and
Ethanol Intoxication on the Timing of Agonal Responses’(2011) 32 Forensic Medical Pathology 104.
Douglas et al.49
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting