Non-fatal strangulation: Considering the case for an overlapping offence

Zoe Prebble

Allard Hall School of Law, University of British Columbia, z.prebble@gmail.com

New Zealand is considering whether to introduce a specific offence of non-fatal strangulation occurring in a family violence context. Versions of such an offence already exist in number of jurisdictions, particularly in the United States.  Non-fatal strangulation is already criminalized in New Zealand under existing generic assault offences; a new specific offence would overlap with existing generic assault offences. Advocates for a specific offence, such as the New Zealand Family Violence Death Review Committee and the Law Commission, argue that for pragmatic and principled reasons, family violence involving non-fatal strangulation should be expressly marked out on its own terms.

Strangulation is different from other forms of family violence in two key respects. First, it is an important risk factor for future fatality – victims of family violence who have been strangled are seven times more likely to eventually be killed by their abusers than victims of family violence who have not been strangled. This means that judges and other decision makers who interact with victims and abusers need to be aware of strangulation as the risk factor that it is in order to make decisions to help keep victims safe. Secondly, strangulation often leaves no physical signs or marks, which can make it difficult to prosecute, and can contribute to strangulation being underestimated as a risk factor for further violence.

There are reasons to be wary of overlapping offences. Overcriminalization literature cautions that the greater the number of overlapping offences covering the same type of conduct, the greater the charging discretion accorded to prosecutors, and the greater the uncertainty for accused persons about what portion of the law is likely to be enforced. This paper considers whether non-fatal strangulation is sufficiently distinct conduct from other modes of assault offending to justify the creation of a new, specific offence.

Biography

Zoë Prebble is a PhD candidate studying overlapping offence design in criminal law.

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