Non-lethal strangulation is a significant form of domestic violence offending designed to exert physical and psychological control over victims. Non-lethal strangulation may also act as indicator of future violence, including homicide. Following concerns raised by the Domestic Violence Death Review Team that strangulation offences “were not being charged under the NSW offence of strangulation, but rather were being charged as common assault or assault occasioning actual bodily harm offences”, the New South Wales Department of Justice has commenced a review into the effectiveness of section 37 of the Crimes Act 1900.

This Issues Backgrounder presents recent data from the New South Wales Bureau of Crime Statistics and Research in order to determine whether, and to what extent, section 37 is being used, leads to convictions and results in appropriate penalties. It also provides information on recent court cases that have applied section 37, in order to illustrate the factors used by courts to assess non-fatal strangulation offences. As a further means of assessing section 37, a broad comparative base of strangulation offences across Australia and in selected overseas jurisdictions is provided. As that comparative exercise illustrates, strangulation offences vary considerably in their degree of inherent complexity. In particular, strangulation offences that require a specific precondition (such as the strangulation being committed in order to commit another offence) or a specific outcome (rendering a person unconscious, insensible or incapable of resistance) are inherently more complex, and therefore more difficult to prove, than offences prohibiting a person from strangling another person without consent.