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  • Writer's pictureJarrod Carter

Suffocation and Strangulation Offence

In Western Australia, the introduction of legal provisions regarding suffocation and strangulation under the Family Violence Legislation Reform Act 2020 marks a significant shift in the judicial approach to family violence. This change is not only a legal adjustment but a crucial step in recognizing and addressing the severe health risks associated with strangulation. The law, which came into effect on 9 July 2020, underscores the seriousness of strangulation as a form of violence and its profound implications for victims.

The offence of suffocation and strangulation, as outlined in section 298 of the Criminal Code, criminalizes the act of impeding another person's normal breathing or blood circulation. This can be achieved either manually or with the aid of any other means, such as blocking the nose or mouth, or applying pressure on the neck. The legal consequences for committing this offence have been considerably heightened. The maximum penalty is set at 5 years of imprisonment, escalating to 7 years in aggravated circumstances. This is a substantial increase from the previous categorization of such conduct under common assault, which carried a maximum penalty of only 18 months imprisonment.

In practical terms, the prosecution of strangulation under the new law involves a relatively low threshold, given its broad definition. The act of impeding breathing does not require a significant degree of force and can be momentary, yet it carries a hefty maximum penalty. This parallels the offence of ‘assault occasioning bodily harm,’ further emphasizing the seriousness with which the legal system views this act.

Under the current legal framework in Western Australia, consent cannot be used as a defence for acts of strangulation, even if the context is sexual. This stance is grounded in the recognition of the inherent dangers associated with choking. Strangulation, regardless of the setting or intent, poses significant risks of severe physical harm, such as brain damage, internal bleeding, and even potential fatality. These risks remain consistent irrespective of the presence or absence of consent. The law’s strict approach to strangulation, including in sexual activities, underscores a commitment to safeguard individuals from the potentially lethal consequences of such acts, ensuring that the dangers of strangulation are not underestimated or overlooked in any context.

While some might argue that laws prohibiting consensual acts of strangulation, even in private or sexual contexts, represent undue state intervention in personal affairs, it's essential to view this in the broader context of public health and safety legislation.

Similar to the prohibition of dangerous substances like heroin, which is both a private choice and perilously hazardous to an individual's health, the legal stance on strangulation is rooted in a responsibility to mitigate activities that pose significant risks. The state’s role in regulating such behaviors, despite their private nature, aligns with a broader pattern of safeguarding public health and welfare. By criminalizing inherently dangerous acts like strangulation or the use of lethal drugs, the law reflects a commitment to protecting individuals from serious harm or death, regardless of the personal or consensual nature of these activities.

This legal development in Western Australia reflects a broader movement in Australian law to legislate more stringently against domestic violence. By targeting specific acts like strangulation, the law acknowledges the unique and severe nature of this form of abuse. Strangulation in domestic violence settings is often a display of control and dominance, a physical manifestation of the perpetrator's intention to exert power over the victim. Recognizing this act as a separate offence is crucial in understanding the dynamics of abusive relationships and providing appropriate legal recourse for victims.

The importance of this law becomes even more evident when considering the medical consequences of strangulation. Strangulation can lead to a range of severe health issues, including internal injuries like blood clots, stroke, and brain damage due to a lack of oxygen. The act of strangling someone can result in immediate and long-term damage, even if there are no visible signs of injury. This highlights the necessity for first responders to be adequately trained to understand the gravity of the situation, ask pertinent questions, and ensure the victim receives the proper medical treatment.

Medical research has shed light on the often-underestimated dangers of strangulation. Victims may not always show external signs of injury, leading to a downplay of the severity of the attack. However, even minimal force used in strangulation can cause internal bleeding, swelling in the neck, and long-term damage to the brain and other vital organs. Pressure applied to the neck can damage the carotid arteries, compromising blood flow to the brain and potentially resulting in conditions akin to a stroke. The potential for delayed medical complications following an assault is a critical aspect that needs acknowledgment and appropriate medical intervention.

The new law also serves an educational purpose, raising awareness among both professionals and the public about the dangers of strangulation. It highlights the need for specialized training for first responders, medical personnel, and law enforcement in recognizing and handling cases of strangulation.

The introduction of these legal provisions in Western Australia is part of a growing recognition across Australia and globally of the need to address the specificities of domestic violence more effectively. By acknowledging the unique dangers of acts like strangulation, the law paves the way for more informed, effective, and empathetic responses to victims of domestic violence. It also serves as a deterrent, sending a clear message about the severity with which such acts are viewed by the legal system.

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