Page 3480 - Week 11 - Thursday, 24 September 2015
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The amendments proposed by this bill will amend section 28 of the Crimes Act to reflect that strangulation that does not cause unconsciousness is still an act that endangers health; amends the Evidence (Miscellaneous Provisions) Act 1991 to allow police records of interview to be admitted as evidence-in-chief for domestic violence offence proceedings; expands the special measures provisions so that they apply to breaches of domestic violence orders and other select offences; and makes a number of other consequential amendments as a result of the new evidence-in-chief provisions. The bill also amends the Domestic Violence and Protection Orders Act 2008 to create a new class of interim domestic violence order, or DVO, to allow a court to extend interim DVOs where there are current criminal charges unresolved before the court.
Today I will provide members with an overview of the proposed amendments and the policies that drive these reforms. Turning firstly to the issue of strangulation, the bill amends the acts that endanger health set out in section 28 of the Crimes Act to reflect that choking, suffocating or strangling another person can have serious impacts on a victim’s long and short-term health. Non-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide.
A study conducted in San Diego of 300 domestic violence cases concluded that despite strangulation leading to serious health issues only 15 per cent of strangulation victims had marks able to be photographed and 50 per cent of all victims had no visible markings at all. The United Nations Entity for Gender Equality and the Empowerment of Women publicly advocates legislative recognition of the impact of strangulation and states:
Many domestic violence victims have experienced some form of attempted strangulation, which has often been discounted as “choking”. This form of abuse can have serious physical and psychological consequences, and is often a precursor to deadly violence.
For this reason, it is important that there is an appropriate offence to accurately reflect the harm caused to a person’s health through strangulation. In the existing provision, in order to prove an offence the prosecution must prove beyond reasonable doubt that the strangulation was so severe that the victim lost consciousness or was rendered insensible. If a defendant instead applied pressure to a victim’s throat to such an extent that they lost the ability to breathe but stayed conscious and in possession of all their faculties the charge would fail. The only alternative charge, when no marks are visible, is common assault which has a maximum penalty of two years imprisonment.
Therefore this amendment seeks to recognise the seriousness of strangulation by creating an offence with a lower threshold than endangering life. This reflects the evidence that strangulation is a tactic often used in family violence to threaten, intimidate or control a victim. The amendment will primarily support the human rights of a person who has experienced or may experience family violence and will affect the rights of a defendant in the criminal process.
This offence will also apply outside a domestic or family violence situation. While the risk of serious injury is substantially higher for strangulation that occurs in a domestic
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