The Domestic Abuse Bill must make non-fatal strangulation a stand-alone offence

By Nogah Ofer, solicitor at Centre for Women’s Justice

What does being strangled feel like?

A survey of more than 400 survivors who experienced strangulation contains some vivid descriptions:

“I felt like my head was going to explode, I was gasping for air and trying to scream and shout but could not make any real noise and felt totally helpless”

Many said they truly believed they were about to lose their lives. Some were in view of their children. Not being able to breathe is terrifying, which is why water-boarding is used as a form of torture.

Strangulation and suffocation prevent oxygen from reaching the brain. First there is a loss of vision, then unconsciousness within around 10 seconds, followed by loss of control of bladder and bowels. Death occurs between 1 to 2.5 minutes.

In 2018, 29% of female homicides in the UK were by strangulation or asphyxiation, on average one woman every 10 days. For the vast majority who survive there can be many hidden physical and psychological impacts. Unconsciousness means loss of oxygen to the brain which causes mild brain damage, and neurological problems such as loss of memory, facial and eyelid droop, tinnitus, increased risk of miscarriage and even stroke several months later due to blood clots. Strangulation is thought to be the second most common cause of stroke for women under 40. Other physical effects include damaged trachea/larynx, nausea, ear bleeding, a raspy voice. Psychological effects include post-traumatic stress disorder, anxiety disorder, suicidality and exacerbation of other mental health conditions.

Strangulation is so common in domestic abuse that it is almost normalised. Safelives calculate that amongst survivors deemed high risk and referred to IDVAs, 37% of those who report physical abuse experience strangulation or attempted strangulation, which adds up to 20,000 women per year across the UK. There are also those deemed standard or medium risk, and those who don’t have an IDVA, so even more women out there experience this terrifying ordeal.

And this is a deeply gendered crime. As compared to the 29% of female homicides, only 3% of male homicides in 2018/19 were killed by this method (this figure includes male children and male perpetrators). This gender divide is understandable because, unlike some other forms of attack such as stabbing, to strangle a person you have to physically overpower them.

So what does our criminal law have to say about this terror? This form of domestic torture?

In true British fashion, our law, the Offences Against the Person Act 1861, is more than 160 years old. And it is simply not up to the job of addressing strangulation. It categorises assaults according to the severity of injury in three escalating categories: ‘common assault’, ABH (actual bodily harm) and GBH (grievous bodily harm). Police officers are used to assessing physical injuries and placing incidents into these categories.

Strangulation does not fit these categories because the degree of violence and harm is very high, but the visible injury is very low or non-existent. Often there will be just a red mark, or nothing to see at all. Past loss of consciousness or future neurological problems are not visible, and survivors may well be unaware of links between some symptoms they experience and strangulation.

Therefore, the majority of frontline police officers, when confronted by accounts of strangulation, treat this offence as a ‘common assault’. This is equivalent to a slap. It simply does not reflect the gravity of this offence, the terror of near-death inflicted on a person though physical strength. There is Crown Prosecution Service guidance that strangulation can be charged as ABH, but most frontline police do not appear to be aware of it, including some domestic abuse specialist officers. The law is ineffective when it expects police officers to understand that an assault where they can see no actual bodily harm can be ABH. Another serious problem with ‘common assault’ is that it has a six-month charging deadline, so many cases are simply closed because the time limit is missed. More serious offences, such as ABH, do not have a time limit.

This is why we need a new offence, a straight-forward offence of strangulation or suffocation, which is a more serious offence, without a time limit, equivalent to ABH. This will make the law clear and simple for police officers on the ground and allow our criminal justice system to treat this type of offending with the severity that it deserves. Baroness Newlove, the former Victims Commissioner, is tabling an amendment in the Domestic Abuse Bill to create such an offence.

These unique features of strangulation, which naturally lead to under-charging, have been recognised across the English-speaking world. In the US 37 states have introduced specific offences of strangulation. In Australia three states have done so with others to follow. New Zealand brought in a new offence in December 2018. Before this they had no way of counting the number of assaults prosecuted that involved strangulation. In the first year of the new offence they prosecuted 1,484 cases, which scaled up to the UK’s population would amount to 20,000 cases. The new law triggered up-skilling of medical professionals and increased confidence for victims to come forward. The New Zealand Law Commission prepared a well-researched and thoughtful report on whether a separate law is required. Their starting point was that it is generally preferable to have broad offences like “assault” rather than lots of separate offences for different situations. However, they concluded that the specific features of strangulation that make under-charging a prevailing problem justify a specific offence.

In the UK for too long we have been blind to the under-charging that is happening all around us, in thousands of uncounted cases up and down the country. This horrifying offence needs to be brought out into the open, no longer normalised. Our Ministry of Justice needs to open its eyes and grapple with it. Surely the Domestic Abuse Bill is the ideal opportunity to do that?