Victorian government should be wary of introducing a stand-alone offence of non-fatal strangulation

This week, the state coroner released the findings into the death of Victorian woman Joy Rowley.

In October 2011, James Mulhall killed Joy Rowley. Mulhall had a documented history of violence against previous female partners. In the nine months leading to her death, Rowley had reported incidents of family violence by Mulhall to Victoria Police, including one in which he threatened to kill her with a knife and choked her to the point of unconsciousness. At the time of her death, Mulhall was facing outstanding criminal charges for a previous assault on Rowley and was in violation of a current family violence intervention order.

During the coronial inquest, Victoria Police Assistant Commissioner Dean McWhirter recommended to government the introduction of a stand-alone offence of strangulation. The coroner’s findings conclude:

The introduction of a stand-alone offence for strangulation, suffocation or choking in Victoria may significantly help to ensure strangulation is treated commensurate with the risk it poses to victims, and remove the need to prove particular bodily harm or intent to cause injury. Such an offence will more effectively hold perpetrators to account for serious offending. Further, the new offence may build further awareness of the dangers and potential lethality of strangulation among police members, courts and community services practitioners.

The coroner does not go as far as recommending the introduction of the new offence. However, many are likely to read this conclusion as an endorsement of it.

Although strangulation is a significant risk indicator for intimate partner homicide, we urge caution to the government in considering the introduction of such an offence.

Read more: Victoria leads the way on family violence, but Canberra needs to lift its game

Strangulation as a key risk indicator of intimate partner homicide

Strangulation is a leading cause of death among women killed by a current or former male intimate partner. In Australia over the past ten years, an act of strangulation/suffocation has been cited as the cause of death of 14-16% of male-perpetrated intimate partner homicides. Research has also consistently found an incident of non-fatal strangulation greatly increases the risk of escalated harm or death in an intimate relationship.

Despite acknowledgement of the key risk it presents, recent reviews suggest that police often fail to identify and flag strangulation when responding to intimate partner violence incidents. It can be difficult to identify injuries from non-fatal strangulation, which may contribute to it not being taken seriously.

Offences of strangulation in Australia

The coroner’s findings into Joy Rowley’s death state that an act of non-fatal strangulation can be captured under a number of existing offences in Victoria. These include unlawful assault, intentionally or recklessly causing serious injury and endangerment.

The findings also acknowledge the difficulties that are often encountered in criminal cases where visible physical injuries do not present.

Several Australian jurisdictions have gone beyond the traditional criminal offences that would cover strangulation and introduced a stand-alone offence of strangulation. The specifics of the legislation differ by jurisdiction. For example, the ACT offence requires the victim to be rendered “insensible” and “unconscious” by strangulation. The NSW legislation applies to conduct involving “attempts to choke suffocate or strangle” a person.

In 2015, the Queensland Special Taskforce led by Dame Quentin Bryce concluded there were “gaps in the existing Criminal Code”. It recommended the introduction of a separate criminal offence of strangulation, with a penalty reflecting that it is “a predictor of escalation and increased risk to the victim”.

The taskforce argued that a stand-alone offence would help to ensure better recording of acts of non-fatal strangulation, increased protection for victims and better risk-assessment practices.

In April 2016, the Queensland government introduced the new offence, with a maximum penalty of seven years’ imprisonment. The offence applies to unlawful non-fatal choking, suffocation and strangulation committed in a domestic setting and carried out by a person in a domestic relationship with the victim and/or as conduct associated with domestic violence.

While there have been prosecutions, there is no evidence yet as to the effectiveness of the offence in enhancing women’s safety.

Arguments against a stand-alone offence of strangulation

Despite the proliferation of strangulation offences in Australia, there is no reliable evidence that this has improved safety for victims.

There are concerns that introducing new family violence offences such as strangulation may distract attention from systemic failures to properly utilise existing laws, and from police failure to comply with operational policies and procedures related to family violence.

Marianne Jago from Women’s Legal Service Victoria has argued that Victorian law:

contains provisions for strangulation to be criminalised. Unfortunately, we regularly see cases where police have not followed existing good practices and policy.

This critique is particularly poignant in the context of the inquiry into Joy Rowley’s death. McWhirter delivered an apology to Rowley’s family, acknowledging that prior to her death there was a failure to comply with relevant Victoria Police policy.

As the coroner states:

Ms Rowley’s case demonstrates a failure by frontline Victoria Police officers to implement policies relevant to family violence which were in existence at the time of the family violence incidents involving Ms Rowley, and at the time of her death.

To this end, the coroner has recommended that Victoria Police engage in systematic reviews of family violence-related homicides to ensure police policies are as effective as possible in preventing and dealing with family violence. We support that recommendation.

Where to next?

The coroner’s findings state that the need for a stand-alone offence of non-fatal strangulation will next be considered by the Victorian Department of Justice and Regulation. In lieu of any evidence from other Australian jurisdictions that the introduction of this offence improves safety for women experiencing intimate partner violence, we would urge caution.

Read more: How Victoria's family violence system fails some victims – by assuming they're perpetrators

The Victorian government presently faces the significant challenge of overseeing the implementation of the 227 recommendations of the Royal Commission into Family Violence. These recommendations are considered and evidence-based. The introduction of a stand-alone offence of strangulation was not one of these recommendations.

We must remain focused on the long-term goal of achieving whole-of-system change to improve legal, policy, support service and specialist responses to family violence.

We must not be distracted by the lure of short-term gains, which are unlikely to deliver the safety outcomes we so desperately need for the many women and children impacted by family violence in the Victorian community.