King’s College London grad Lucy Sutton explores the implications
Prior to June 2022, the act of non-fatally strangling or suffocating your partner would likely land you a charge of common assault or actual bodily harm (‘ABH’). However, as part of the government’s Violence Against Women and Girls strategy, the Domestic Abuse Act (2021) introduced two separate offences of non-fatal strangulation and non-fatal suffocation. The offence of non-fatal strangulation requires a person to intentionally strangle another under s75A(1)(a). The offence of non-fatal suffocation falls under s75A(1)(b), which describes any other act that affects another’s ability to breathe, and which constitutes battery. But exactly why were these separate offences necessary in the first place?
No question is asked in a vacuum. Charities in England and Wales state that only around a quarter of domestic offences are even reported. The Criminal Survey of England and Wales recognised last year that of nearly 900,000 recorded police incidents, less than 40,000 offenders were convicted. Clearly, more needs to be done by stakeholders at every level to tackle low reporting and conviction rates, but adequate statutory developments are perhaps the foundational legal aspect to change. Campaigning for greater reporting of these crimes is fruitless if the eventual indictment does not reflect the damage caused.
Essentially, an ABH or mere common assault charge does not sufficiently tackle society’s wider evolving understanding of domestic violence. Every law student can confidently reel off the characteristics of an ABH offence like a nursery rhyme; the assault must cause more than ‘trifling’ and ‘transient’ injury. Incidents of non-fatal strangulation and suffocation certainly fall into this category when one understands the detrimental effects of even momentary strangulation. Unfortunately, the serious harm caused does not always surface right away and is not always visible to the naked eye — a seemingly fleeting grasp on the neck may appear to produce no physical injury at all. However, the medical evidence has shown that these criminal encounters can have life-changing physical impacts on victims. The Offences Against the Persons Act (1861) is a broad and far-reaching legislation, designed to reflect a myriad of assaults. However, it lacks awareness of the particular dangers that non-fatal strangulation and suffocation have on a victim’s health and their future. The new offence under s75A(1)(b) lowers the benchmark of immediate physical injury to battery. Battery, as most of you will know, requires only unlawful physical force. This important distinction ensures that risk of greater injury that is not able to be proven in the moments ensuing an attack are not diluted to common assault. So what exactly are the hidden dangers?
Physical effects: As little pressure as opening a can of Coke
Dr Catherine White OBE has extensively researched the effects of non-fatal strangulation and suffocation and is committed to educating people on the subject. Her project, the Institute for Addressing Strangulation, critically demonstrates why ABH and common assault were insufficient in capturing the danger of strangulation and suffocation.
Want to write for the Legal Cheek Journal?
Find out moreThe Institute makes clear that there is no safe way to strangle, describing the pressure required to produce life-changing psychological and physical injuries as less than what is required to open a can of coke. Essentially, there is no more delicate area to obstruct blood flow and oxygen than the neck. Strangulation can cause clots in blood vessels, which may not show visible injury but can lead to strokes. In fact, the medical evidence available suggests that strangulation is the second most common cause of stroke in young women. Below are listed just a few more delayed sequelae linked to strangulation and suffocation:
Psychological effects and room for graduation
Most people would agree that physical abuse from a partner would induce serious psychological effects. But the specific acts of strangulation have been linked to PTSD, dissociation, depression and even suicidality. The new legislation better addresses the specific gravity of strangulation and suffocation in such relationships. It would have been more appropriate in bringing perpetrators such as the abuser in R v Jex (2021) to a more just conviction.
The defendant in this case was charged with ABH after violently head-locking his ex-partner, who had suffered extensive domestic abuse throughout their relationship. The offence was seriously aggravated by the element of manual strangulation, but erroneously charged by the crown as a summary only offence and tried in the magistrates court. Upon appeal, the victim’s personal statement was read out, where she described feeling unsafe and let-down, in no small part due to what she reasonably perceived as ‘lenient’ sentences handed down to Mr Jex throughout their abusive relationship. The appeal court heard that the headlock lasted for almost one minute. The original suggestion that Mr Jex’s actions would amount to a summary offence seems absurd when it is documented that longer than one minute of strangulation can be fatal. If the offence happened today, Mr Jex could have been charged with non-fatal strangulation. The specificity of s75A(1)(a) would have better safeguarded the error in charging by the Crown. This is because under the new offence, signs of visible injury are only minor aspects of the prosecution’s decision.
In criminal sentencing, the term ‘graduation’ is often used to describe the offender who begins lower-level offending and then proceeds to commit more serious offences of the same category. For example, the drug possessor becomes the drug supplier. The popular ‘boiling frog’ analogy often used in relation to domestic abuse here applies. Charities have warned that non-fatal strangulation has lethal consequences, stating that if a perpetrator has strangled their partner in the past, they are ten times more likely to kill them. Graduation in the realm of domestic violence can be fatal.
The propensity for offenders to commit more serious assaults is particularly concerning when one considers that domestic abuse makes up 18% of recorded crimes in England and Wales. Specific legislation that deals with the seriousness of strangulation and suffocation is therefore essential. Whilst issues of complainant withdrawals due to pressure from an ex-partner complainant remain prevalent in the courts, it is critical that criminal legislation better addresses the serious nature of domestic violence offences—if anything, to properly indict these dangerous offences. Lay complainants such as in the case of Jex, who have felt disheartened by the prospect giving evidence partner for what can be seen as a lesser offence, may be better assured by the phrasing of the new offences that their suffering is taken seriously.
What can we expect to change a year and a half on?
The main question on activists’ and criminal law enthusiasts’ minds alike is whether, in the long term, the new offences will materially improve legal responses to domestic violence in England and Wales. Nobody has suggested that the act is a panacea, but how successful is it likely to be in raising awareness and deterring this class of extremely dangerous assault?
One downside perhaps is that the new offence carries the same maximum sentence as ABH — 5 years. Some may argue a longer custodial sentence would be more appropriate to protect victims from the harm I have described. However, recent case-law has ensured that specific aggravating domestic abuse factors will be taken into account in ways which an ABH charge previously would not. The case of R v Cook last year lists classic abusive behaviours such as attempting to stop a complainant from calling the police as a sentencing factor. For now, in the absence of sentencing guidelines, spectators will have to wait and see how case-law fleshes out these new statutory bones.
Overall, observing material changes in the statistics will be a waiting game. But it should be kept in mind that attempts to reform Violence Against Women and Girls is a cross-departmental and holistic endeavour, encompassing different measures such as the Law Commission’s 2023 report on reforming evidence in rape trials. These reforms, whether procedural or legislative, will not be the last developments in tackling domestic abuse, but certainly show a better grasp on the seriousness and long-term impacts of violence against partners.
Lucy Sutton is a first-class English graduate from King’s College London and is an aspiring barrister with a particular interest in criminal law.
(
(
