New Offences of Non-Fatal Strangulation & Non-Fatal Suffocation & the Withdrawal of the Rough Sex Defence

Non-Fatal Strangulation and Suffocation

s. 70 of the Domestic Abuse Act 2021 inserts a new section, 75A into the Serious Crime Act 2015 creating offences of non-fatal strangulation (s. 75A(1)(a)) and non-fatal suffocation (s. 75A(1)(b)). They each carry a maximum sentence of 5 years imprisonment on indictment and apply to offences committed on or after the 7th of June 2022.

The mens rea for the (1)(a) offence is intentional strangulation but there is no requirement for the defendant to have intended thereby to cause injury. The (1)(b) offence requires serious harm to have been inflicted either by strangulation or by a battery which affects the victim’s breathing. The mens rea is the intentional or reckless application of unlawful force.

The legislation doesn’t provide a definition for strangulation or suffocation but the CPS Guidance for prosecutors in respect of both offences is to use the ordinary dictionary definition. For strangulation that is the obstruction or compression of blood vessels and/or airways by external pressure to the neck impeding normal breathing or circulation of blood. For suffocation it is to deprive a person of air which affects their normal breathing. The latter definition is obviously wider than the former and does not require pressure to the neck meaning an offence could be committed by any act that deprives a person of air and affects their breathing as long as the force is sufficient to amount to a battery.

It is a defence under s. 75A (2) for the defendant to show (evidential burden) that the victim consented to the strangulation or suffocation. However, that is limited by s. 75A (3) which, reflecting the new limit to rough sex as set out below, states that the defence doesn’t apply if serious injury results and the defendant either intended or was reckless as to whether serious harm would be caused and serious harm in this context is any harm over and above a battery (s. 75A (6)).

Why a specific offence was required

Prior to the enactment of this offence, if a complaint of strangulation was made within 6 months, because of the minor injury that usually resulted, if it was charged at all, it would be charged as a battery. Often, it would occur in cases involving violent and/or coercive and controlling relationships where the complaint was made too late for it to be charged as a separate offence. In those cases, it either became an element of the coercive and controlling behaviour or was adduced as evidence of bad character to show the nature of the relationship.

There is an offence of attempting to choke under s. 21 of the OAP1861 but that was rarely used, mainly because it requires proof that the defendant strangled, in order to commit another offence. That meant that if a defendant raped his victim before strangling her and leaving her for dead, the offence couldn’t apply. Equally, if he carried out a prolonged assault the final part of which involved strangulation, the s. 21 offence wouldn’t apply. In fact, the indictment precedent in Archbold uses enabling to rob as an example of the ulterior intent, demonstrating just how misconceived and out of date the offence is to reflect the modern reality of the use of both strangulation and suffocation.

Those who practice in this area will have noticed that complaints of strangulation, or more often referred to by victims as choking, have become more common in recent years. That anecdotal finding is reflected in research which shows that 20,000 women a year, 55 women a day, who suffered physical abuse and were assessed as being high risk, also reported strangulation or attempted strangulation.

Unlike almost every other offence, strangulation is uniquely gendered, almost always (97%) being committed by a man on a woman. It is also a signifier of future risk because defendants who have strangled a partner in the past have been found to be 7 times more likely to kill or attempt to kill that partner in any future attack. The National Femicide Census for 2020 which reported that 110 women were killed by men in the UK, found that strangulation was the second most common method of killing and was used in 22% of all femicides.

Research into victims of physical abuse carried out in Australia, looked at 79 women over a 6-year period and found that the assailant was (unsurprisingly) most frequently someone with whom they were in an intimate relationship. Importantly, their research also showed that less than half of the women had any external physical injuries following strangulation or asphyxiation, which often resulted in the perpetrator not being charged. It is that very lack of injury which makes it a form of assault which can be and is, repeatedly inflicted on the same victim.

Despite there being no or little physical evidence of serious injury, unlike in other forms of assault, 37% of victims of strangulation or asphyxiation reported a belief that they were going to die making the psychological harm significant.

The Withdrawal of the Rough Sex Defence

S. 71 of the Domestic Abuse Act 2021 puts the principle in R v Brown (1993) 2 WLR 556 onto a legislative footing and thereby prohibiting the rough sex defence. It is no longer a defence to an offence involving sexual gratification for a defendant to say that the victim consented in cases where serious harm results. As with s. 75A(1)(b) above, serious harm in this context is ABH or more serious injury. The only exception relates to the transmission of sexually transmitted infections, where in certain circumstances, a person may consent to the risk of acquiring a STI.

This legislation resulted from pressure by campaign groups including from the group “We Can’t Consent To This” set up as a response to the increasing use and normalisation of the rough sex defence in cases involving the killing or serious injury to women and girls. Their research found that 38% of women under the age of 40 had experienced unwanted slapping, spitting, choking, or gagging.

In answer to whether there was a need to limit the use of the defence, their site details the cases of 59 women murdered between 1972 and 2021 in which the defendant claimed that the injuries were inflicted as part of rough sex. Of those 59 cases 38 resulted in convictions for murder, 16 were convicted of manslaughter, 2 were found not guilty and 3 were not charged. Importantly, when reflecting on the new non-fatal strangulation and suffocation offences, of those 59 deaths, all but 17 were caused by strangulation or asphyxiation.

There have unbelievably been some experiments conducted into strangulation which have demonstrated that it takes 6.8 seconds to render someone unconscious, 15 seconds to cause them to lose control of their bladder and 30 seconds to lose control of their bowels. That illustrates a remark made by a Swiss court in the case of Anna Florence Reed that “a death from strangulation is not instantaneous. Whoever causes it has time to see what is happening, sees the victim suffocate but does not stop.”

Each of these changes are a welcome addition to the armoury of prosecutors, that began with an understanding of and a desire to tackle the myths and stereotypes associated with victims of sexual and domestic abuse. Women do not consent as a matter of course to being strangled or suffocated nor do they consent to being assaulted for the sexual gratification of their abusive partners.

It was high time that those acts were reflected in offences which didn’t impose an impediment to charge, with sentences commensurate to the harm caused and which denied the perpetrators the opportunity to blame their actions on their victim.

Sarah Regan