Proving non-fatal strangulation in family violence cases: A case study on the criminalisation of family violence

AuthorHeather Douglas,Robin Fitzgerald
Published date01 October 2021
Date01 October 2021
Subject MatterArticles
Proving non-fatal strangulation
in family violence cases: A case
study on the criminalisation of
family violence
Heather Douglas
The University of Melbourne, Melbourne, Australia
Robin Fitzgerald
The University of QueenslandSaint Lucia Campus, Saint Lucia, Australia
Non-fatal strangulation is recognised as a common form of coercive control in violent relation-
ships. Overwhelmingly it is perpetrated by men against women. It is dangerous both because of
the immediate and serious injuries it can cause, and the risk of future violence associated with
it. A discrete offence of non-fatal strangulation has been introduced in many countries.
Queensland, Australia introduced a discrete non-fatal strangulation offence in 2016. While
the offence is charged often, around half the non-fatal strangulation charges laid by police
do not proceed. We spoke to prosecution and defence lawyers to better understand the evi-
dential obstacles to successful prosecution. We found that the prosecution of the offence faces
challenges common to family violence offences more broadly, despite it being a discrete phys-
ical act. Specically, we found that the willingness of the victim to testify and the perception of
the victims credibility were key to successful prosecution.
non-fatal strangulation, domestic and family violence, credibility, prosecution, coercive control
Non-fatal strangulation (NFS) is now recognised as extremely dangerous because of the serious, but often
invisible, injuries it can cause, and the high risk of future harm and death associated with it, especially
when carried out in the context of domestic violence (Funk and Schuppel, 2003; Turkel, 2007).
Researchers and practitioners have identied shortcomings in the criminal law response to NFS and
Corresponding author:
Heather Douglas, Department of Law, The Universityof Melbourne, 185 Pelham St, Carlton, Melbourne, Victoria 3010, Australia.
Original Research Article
The International Journal of
Evidence & Proof
2021, Vol. 25(4) 350370
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/13657127211036175
argued for the introduction of a specic criminal offence to deal with this form of domestic violence
(Special Taskforce on Domestic Violence in Queensland, 2015). One study has suggested that in
those places where there is not a non-fatal strangulation offence available, the charge of assault is the
most common chargeif there is any charge at all (Gombru et al., 2016). Assault does not identify
the behaviour at the heart of the charge and assaults often result in low-level penalties that do not
reect the seriousness of the behaviour. While more serious forms of assault or offences causing
injury may be available to be charged in response to some incidents of non-fatal strangulation, the behav-
iour often leaves no visible injury, despite its seriousness. In some cases, attempted murder may be an
option, but it may be difcult to prove intent to cause serious harm or death (Douglas and Fitzgerald,
2014). In response to research highlighting the serious harms and risks associated with NFS and to
the perceived undercharging of it, many American states established discrete offences of non-fatal stran-
gulation throughout the 2000s (Pritchard et al., 2017). Most Australian jurisdictions, Canada and New
Zealand have subsequently followed their lead, introducing discrete offences of NFS (Edwards and
Douglas, 2021).
England and Wales have also introduced a non-fatal strangulation offence in 2021
(Domestic Abuse Act 2021 (England and Wales), s. 75A).
In 2015, the Special Taskforce on Domestic and Family Violence in Queensland recommended that a
dedicated offence for this serious and violent act needs to be added to the Code and an appropriate
penalty applied that takes into account that the act of strangulation within a domestic violence situation
is a predicator of escalation and increased risk to the victim(2015: 21). In response, the
Attorney-General introduced the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015
(the Bill) which proposed an NFS offence. A parliamentary inquiry elded submissions on the Bill,
and these were generally supportive of the introduction of the offence, with the exception of the
Queensland Bar Association (Legal Affairs and Community Safety Committee, 2016). It disagreed
with the introduction of the offence, contending that the way the offence was drafted would invite argu-
ment potentially involving medical evidence and evidence from complainants(Legal Affairs and
Community Safety Committee, 2016: 13). They reasoned that prosecuting authorities may have difcul-
ties satisfying the evidential threshold for the offence and that it may be common that medical evidence
and complainant evidence is successfully challenged by the defence. The offence was subsequently intro-
duced into law and has been charged regularly each year since its introduction. However, only around
half of the NFS charges lodged at the magistrates courts in Queensland result in a conviction and sen-
tence (Queensland Courts, 2021a). As the Bar Association predicted, the lower conviction rate may
reect the challenging evidential threshold for the specic offence. Alternatively, it may be the case,
as Howe (2012: 149) has argued, that womens harms are often dismissed in legal cultureand that
engaging with criminal law may create distress and disillusionment (Coker, 2001; Gruber, 2020;
Mills, 1998). An investigation of this new offence offers an opportunity to investigate not just the
NFS offence but also to reconsider the role of the criminal law in responding to domestic violence
more generally.
In this study, we asked 17 lawyers who are involved in the prosecution and defence of NFS in
Queensland about the kinds of evidence that were important in securing a successful prosecution of
NFS and specically about the role of medical evidence and the evidence of complainants in the pros-
ecution of NFS. Ultimately, we found that despite NFS being a physically violent and single incident
crime the complainants testimony and her willingness to testify are pivotal in most successful prosecu-
tions of NFS. While medical evidence was generally perceived to be ambivalent about the relationshi p
1. In Australia see Crimes Act 1900 (ACT) ss 28(2)(a); 27(1); Crimes Act 1900 (NSW) s. 37(1A); Criminal Code Act (NT) 198 3
s. 186AA; Criminal Code Act 1899 (Qld) s. 315A; Criminal Law Consolidation Act 1935 (SA) s. 20A; Criminal Code
Compilation Act 1913 s. 298. In Canada, see Criminal Code 1985, s. 267 and in New Zealand see Crimes Act 1961, s. 189A.
Douglas and Fitzgerald 351

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