Creation of a separate crime of non-fatal strangulation

An element of the revised Law Commission work programme 2014/15 issued by the Minister of Justice included creation of a separate crime of non-fatal strangulation.

In its fourth Annual Report the Family Violence Death Review Committee noted that non-fatal strangulation “is an important lethality risk indicator and the Committee believes it must be considered a “red flag” for future serious abuse and fatality”. The Committee accordingly recommended that “the government consider an amendment to the Crimes Act to include non-fatal strangulation as a separate crime under Part 8 of the Crimes Act 1961”.

The Law Commission will consider:

1. The rationale for establishing a crime of non-fatal strangulation, with reference to the recommendations of the Family Violence Death Review Committee and the experience of overseas jurisdictions.
2. If a crime of non-fatal strangulation is to be created, the appropriate elements of the offence and its maximum penalty, with reference to other offences against the person in the Crimes Act 1961.
3. Whether a crime of non-fatal strangulation should be created or whether there are other (legislative or operational) options that would better address the concerns the proposed crime is intended to address.

Scope

This reference forms part of a range of family violence initiatives that the Minister of Justice is initiating. During the review this reference will consult with the other family violence initiatives and where possible provide integrated recommendations.

This reference is to focus on the creation of the new crime in the family violence context and is not to consider the general law of assault or strangulation, unless necessary to do so.

Review process

The reference will be undertaken by:

1. The Law Commission issuing for targeted consultation a Draft Final Report after undertaking preliminary research which will include assessing overseas experience and best practice.
2. Consulting with targeted agencies within New Zealand including Police, Judiciary, Ministry of Justice, Family Violence Death Review Committee, New Zealand Law Society and other knowledgeable agencies.
3. Engaging with an expert panel, made up of both public and non-public sector advisers, during the reference.

Timing

The Commission will report to the Minister by the 31^st of March 2016. 

Strangulation: The case for a new offence (NZLC R138, 2016)

In its report Strangulation: The case for a new offence (NZLC R138, 2016), the Law Commission makes seven recommendations to improve the way that the criminal justice system responds to strangulation in family violence circumstances. In particular, it recommends that a specific offence of strangulation should be enacted.

Strangulation is a common and particularly harmful form of family violence. A victim of family violence who is strangled has a much greater risk of a future fatal attack by the perpetrator than a victim who was not strangled.

The Law Commission found that the risks following strangulation are not well understood by police, judges and others who assist victims of family violence. This puts the victims at risk of further violence, including a fatal attack.

In at least half of all cases, strangulation does not result in an obvious external injury, even though the victim may have suffered internal injuries or serious mental harm. The lack of obvious external injuries makes it difficult to lay serious charges against the perpetrator. The Law Commission found that in these cases, the abusers are often charged with a low-level offence. This means that the perpetrators of strangulation are often getting a much lower sentence than they deserve.

The Law Commission recommended that a new offence of strangulation should be enacted. That offence should require proof of strangulation, but not proof of injury. It should carry a maximum term of imprisonment of seven years imprisonment.

Correction

The Law Commission acknowledges the valuable contribution that former High Court Judge Ronald Young made to this review as a member of the expert advisory group. His name was in error omitted from the acknowledgements in the Report. We apologise for the error, which is ours.

The Government accepted the Commission’s recommendations: