Understanding the New Strangulation Offense in Domestic Violence
School
The University of Queensland**We aren't endorsed by this school
Course
LAW LLB3399
Subject
Law
Date
Dec 11, 2024
Pages
1
Uploaded by ChefOwl4779
Domestic ViolenceIn 2018, the NSW Parliament included a third offence of strangulation in the Crimes Act 1900s 37(1A). Consider why it was found necessary to include this additional strangulation offence and how it differs from the other two offences in s 37.The original offence, strangulation etc. with the intent of committing another indictable offence was useless in DV situations because the perpetrator would be strangling the person as a form of violence, not to commit another offence. S (1) states that it needs to be the point of incapacitation and the perpetrator needs to be reckless to that fact. In a DV situation, it is incredibly distressing to be strangled and it is still a terrible act even if they remain conscious. The addition of s 1A ensures that ANY strangulation without the consent of the victim (so sexualchoking is OK) is an offence, meaning that the person does not have to be strangled to the pointof unconsciousness and the strangulation does not have to occur with the intent of committing another crime as this does not happen in DV situations.The most recent way that the criminal law has responded to DV is to criminalise forms of non-physical harms which are recognised as a significant factor in DV. Such offences have been drafted around the concept of coercive control (as in UK, Scotland and Ireland). Tasmania was one of the earliest jurisdictions to enact such an offence. Tasmania has an offence of emotional abuse or intimidation in s 9 of the Family Violence Act 2004. Do you think NSW needs a similar offence of ‘coercive control’?Yes. Consistent with 102NA in Family Law Actthat prohibits cross-examination to ensure coercion or intimidation does not happen. This behaviour negatively affects victims as much as physical violence and also prohibits them from pursuing charges for further violence as they are being coerced into remaining silent. It matches the stalking and intimidation charges, somewhat.Maybe an extension of the definition of intimidation could be in order? It may be counter-intuitive, however, as if someone is being coerced or intimidated it is unlikely they will report anything to the police for that very reason.The likelihood of the ADVO being finalised by the Court, including identifying the appropriateness or otherwise of the conditions contained in the provisional ADVO based on the above facts and whether his children would be protected persons under the ADVO.Likely, err on the side of caution and there was threats and violence heard.1.Appropriate, protect victims and explicitly prevents further domestic abuse2.Appropriate, the fact that suicidal tendencies around this issue should be considered. However, he did initially threaten the children3.Appropriate. He threatened to kill them and they are more likely to be unprotected at school or coming from school.4.Somewhat double jeopardy, however, it is directly relevant to the situation as Mr. Doe seems to get aggressive whilst drinking5.Triple jeopardy, appropriate.6.Quadriple jeopardy, appropriate. Threatened whole familyChildren will be under protected persons.
