Response from Raise Your Voice to: Non-Fatal Strangulation: A Public Consultation 24th September 2021
Response from Raise Your Voice to: Non-Fatal Strangulation: A Public Consultation 24th September 2021
Prepared by: Elaine Crory Good Relations Co-ordinator Women’s Resource and Development Agency elaine.crory@wrda.net
Introduction
Raise Your Voice1 is a project delivered in partnership by the Women’s Resource & Development Agency (WRDA), Women’s Support Network (WSN), Reclaim the Agenda (RTA) and Northern Ireland Rural Women’s Network (NIRWN). This project seeks to tackle sexual harassment and sexual violence in communities across Northern Ireland by increasing public awareness, working in communities, educating organisations on best practice, and lobbying for legislative advances in this area. It is overseen by an Anti-Sexual Harassment Forum, which acts as a steering group for the project and is made up of colleagues from the women’s sector, LGBTQI+ sector, trade unions, youth organisations and victims’ organisations.
We welcome this consultation and the opportunity to take part in a vital conversation on this issue. Our view is that non-fatal strangulation makes up part of a wider pattern of violence against women and girls (VAWG) that is poorly understood, seen as a niche issue, and spoken about reluctantly. As such the problem continues to grow in plain sight costing incalculable suffering, loss of life, and impacting every field in our society, from our health service to our economy.
It is important to be unequivocal in the assertion that this crime, in particular, is heavily gendered. Research has shown that the overwhelming majority of the victims of this crime are women, and the overwhelming majority of perpetrators are men, with children being victims all too frequently, often when their mother is a victim also. We recognise that the wording of the legislation will be gender neutral and apply to all, but this does mean that care must be given to the focus of the educational piece that accompanies this legislation. This education must ensure that first responders are aware of this phenomenon presenting in a very gendered way, and that the victims may be victims of coercive control and/or domestic abuse as well, or have suffered sexual violence adjacent to the assault by strangulation. It is also vital that any awareness campaign ensures that the public is made aware that the practice of non-fatal strangulation is not an example of a person “snapping” or “losing control”, on the contrary the act itself is a display of control, a calculated means of displaying their control and domination of a victim. It is deeply tied to patriarchal notions of power balances in relationships and of who is “active” or “leading” and who is “passive” or “receiving” in sexual encounters.
This needs to be unpacked and understood when doing preventative work around this issue, including within any modules on non-fatal strangulation included in the RSE curriculum for schools. Academic Kate Manne, who specialises in understanding the dynamic of misogyny that drives violence against women and girls, argues that “strangulation is torture...It is characterised as a demonstration of authority and domination. As such, together with its gendered nature, it is a type of action paradigmactic of misogyny.”
Manne, Kate (2018) Down Girl, the Logic of Misogyny (Oxford University Press) p. 3
In the local context, as well as internationally, there remains a need for a serious examination of violence against women and girls (VAWG) as a phenomenon, and a commitment to taking seriously the prevalence of this violence, understanding its causes as well as dealing with its effects. This will require resourcing to help victims and survivors, but it will also require committed, thorough and brave education coupled with a broader conversation about this endemic social problem. We look forward to the forthcoming Executive VAWG strategy and hope that it is as wide-ranging, unflinching and ambitious as it needs to be in order to get to grips with the scale of the problem.
Within the scope of this consultation, it is imperative that a new offence of non-fatal strangulation be introduced in Northern Ireland. We believe that it will work best alongside a raft of new measures that are currently in the process of being introduced, as well as suggesting other routes forward to best secure the health, safety and flourishing of everyone in our society. There is an evident need for this offence to be introduced, for the necessary educational piece of work to be put in place, and for this roll out to be properly and fully resourced - doing so will save lives. Evidence from jurisdictions where this kind of legislation is in place already shows that it works when fully enacted and treated with due seriousness - New Zealand has had such a law since 2018 and while the enactment is occasionally less than perfect, progress is being made.3
3 Law Commission New Zealand, Strangulation, the Case for a New Offence https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC-R138.pdf
Questions
Question 1: Do you think the law in Northern Ireland is sufficient as it stands?
No
Please give reasons for your response:
At present the law is insufficient. Partially because it dates from 1861, it does not take into account what we now know about non-fatal strangulation; that it is often used as a tool of control and coercion, often within an intimate relationship, and not necessarily as a failed attempt at murder or “other indictable offence”.4 The Offences Against the Person Act 1861 stipulates that it must be linked to another indictable offence and this does not capture fully the way that we now know non-fatal strangulation most often presents itself; specifically, as a tool of coercive control, and/or as part of sexual violence
While non-fatal strangulation is often an indicator of an escalation of abuse, and this escalation may continue and too often ends with murder, tying it to the intent to commit a more serious offence in the law almost requires the situation to worsen and the danger to the victim’s life to reach a certain critical threshold before the law can intervene with the necessary urgency and gravity that this offence merits. The goal must be to protect potential victims from such an escalation, particularly when there is an abundance of evidence, from a diverse range of jurisdictions, that non-fatal strangulation is a very significant indicator that such an escalation may be imminent or already underway.5
This gap in the law is best addressed not by simply removing the need for it to be committed in the act of carrying out another indictable offence, but with a new offence that captures accurately its use as a means of harming an intimate partner and keeping them silent; Manne, again, notes that “victims of strangulation are so reluctant to testify against their abusers...having been pre-intimidated or, so to speak, smothered.”6 Therefore a stand- alone offence would be very welcome in terms of both addressing and acknowledging the seriousness of this crime and attempting to prevent any further escalation in individual cases by encouraging swift intervention. And additionally, the knowledge that this offence includes “pre-intimidation” of witnesses, such a new stand-alone offence requires the provision of a robust package of funding to allow for the support services to provide the support that the victim/survivors will require.
Further, while the visible effects of non-fatal strangulation are less apparent than some other forms of physical assault that can characterise domestic abuse and coercive control, as well as of sexual violence, the actual effects can be extremely significant. These range from a loss of consciousness indicating brain injury, injury to the throat, neck, vocal cords and veins which may lead to further complications including stroke caused by blood clots, miscarriage, seizures, speech disorders and incontinence. These effects can be cumulative also, and we know that these offences are very rarely committed only once, they form a pattern of control. Additionally, there are a wide range of known psychological impacts including PTSD, anxiety, depression, suicidal ideation, and dissociation. In the Northern Ireland context, where our mental health services are already struggling to cope with demand, this adds to the urgency for serious investment in these services which save lives just as much as emergency medicine.
What we know about this range of impacts reiterate the seriousness of non-fatal strangulation, regardless of whether there is an escalation of violence, regardless of whether the behaviour is repeated, and regardless of whether any given victim experiences all or even some of these effects. The reality of the act of non-fatal strangulation is that it carries a profound threat; as well as causing extreme pain, the victim is deliberately made acutely aware that their life is very literally in their attacker’s hands, that they can choose at any moment to end it. The impacts of this are significant, both in the moment and in the longer term, and a stand-alone offence is the appropriate way to tackle it.
“Strangulation is an effective and cruel way of asserting dominance and control over a person through the terrifying experience of being starved of oxygen and the very close personal contact with the victim who is rendered helpless at the mercy of the offender. The intention of the offender may be to create a shared understanding that death, should the offender so choose, is only seconds away. The act of strangulation symbolizes an abuser’s power and control over the victim, most of whom are female.”7
Question 2: Which of the following is your preferred option?
Please select:
(a) No change?
(b) Make strangulation a statutory aggravating factor to be taken into account by the courts when sentencing for any offence?
(d) Other?
The best course of action is to create a new stand-alone offence of non-fatal strangulation with appropriate sentencing guidelines. As outlined above, this course of action will properly recognise the seriousness of this offence in and of itself, regardless of its connection to other offences. It will also make it possible for the legal system to recognise the harm caused and danger posed by this offence alone, and used properly will help to ensure the safety of those who are victims of this particular offence. We recognise that it often presents alongside other offences, but argue that treating any of them as aggravating factors, as opposed to individual serious crimes, can have the effect of diminishing their gravity or reducing the chance of prosecution for all parts of the wrong caused to the survivor.
(c) Create a new stand-alone offence of non-fatal strangulation with appropriate maximum sentence?
We are mindful also of the realities of how courts tend to process cases where aggravating factors are added after conviction. Not only does this require a conviction to take place - which like the existing law requires another crime to have occurred - but, as Judge Marrinan outlined in his Hate Crime Review, all too often these aggravating factors are not pursued by the PPS for assorted reasons. This offence is too serious and too dangerous to allow it to be seen as an option to be dropped when the odds seem unfavourable or when the PPS is satisfied - it must be an offence in and of itself, with the victim’s experience of profound harm given the place that it deserves.
There are other benefits of making this a stand-alone offence also. Firstly, while we do have cases where Judges have explicitly addressed the phenomenon we are here calling non-fatal strangulation, we can only guess at the scale of the problem without accurate statistics and records. Therefore, a new offence will help to monitor the frequency and pattern of these occurrences if accurate statistics are gathered, and this will also allow the police service to allocate resources accordingly.
In addition, if this becomes a stand-alone offence it should be accompanied by a robust campaign to raise awareness of the issue. This will help to prevent future occurrences by raising awareness about the seriousness of non-fatal strangulation and educate people about red flags and unacceptable behaviours. It will also help victims who may be living with this abuse at this moment to gather the courage to report it and seek help. There is more detail provided on this in our response to Q. 7 below.
Question 3: if a new strangulation offence is developed, should it be capable of being tried in the magistrates’ courts and in the Crown Court?
Please select:
o In Crown Court only
We are mindful of the fact that the use of Magistrates’ Courts generally allows for a more efficient process and therefore, in theory, the more swift delivery of justice. We are aware that this is a valuable goal in itself, particularly because there may be a great deal of anxiety and fear on the part of the victim/survivor, generated by the experience of suffering from non-fatal strangulation alone or alongside a broader kind of abuse or coercive control.
With that said, the Magistrates’ Court is limited in terms of the maximum sentence that it can impose, to such an extent that it is not sufficient to capture the seriousness of the offence and the harm caused to the victim, even if the maximum sentence is always imposed.
For this reason, we argue that these cases should be heard only in Crown Court, commensurate with the nature of the crime and the risk posed by perpetrators. The issue of delays in the system is an issue that impacts the delivery of justice in a wide variety of cases, and the system as a whole needs investment so that this problem is alleviated.
Question 4: If a new offence could be tried in the magistrates’ courts should the maximum sentence be (a) 6 months; (b) 12 months; or (c) 2 years?
Please Select:
(a) 6 months (b) 12 Months (c) 2 years.
N/A
We believe that the offence of non-fatal strangulation is too serious to be appropriately heard or sentenced in a Magistrates Court and therefore these cases should be reserved for Crown Court.
Question 5: If a new offence could be tried in the Crown Court, should the maximum sentence be (a) 5 years; (b) 7 years; or (c) other?
Please select:
(a) 5 years
(b) 7 years
(c) Other
It is vital that sentencing for this offence is commensurate with the seriousness of the offence and recognises the risk that the perpetrator may still pose to the victim/survivor.
7 years as a maximum sentence is appropriate given the dire risk to life that is posed by the act of non-fatal strangulation, which simultaneously enacts coercive control and alone constitutes an act of extreme violence intended to highlight the victim’s vulnerability.
In addition, while non-fatal strangulation is inherently not fatal, there are serious and sometimes life-long consequences for those who are assaulted in this way. Survivors may experience both physical impacts short of fatality that may be serious and long-term, and many experience profound psychological impacts that may be life-long and profoundly life- limiting.
Question 6: Do you agree that expenditure on a programme of education to increase awareness of the problems associated with non-fatal strangulation is required?
Please select:
Yes
Please give reasons for your response:
This legislation is designed to be effective at prosecuting those who are guilty of committing the offence of non-fatal strangulation, but effective legislation will also work to prevent such offences from occuring in the first place.
Question 7: If YES, to question 6, what should such a programme cover?
Education is the most effective tool in attempting to prevent such offences, and so an educational package must form part of this legislation. Additionally, there is currently a dearth of information that would help first responders and service providers to recognise victims of this crime, who themselves are often too afraid to speak out about it. This means that genuinely effective education will be aimed at a wide variety of audiences.
As such we recommend;
● Education for service providers and first responders Those people who may be first to encounter victims of non-fatal strangulation need to recognise the signs that it has taken place, which are often subtle and not immediately apparent. In the case of police, in particular, who may be first responders to a domestic dispute where NFS has taken place, the victim may be unwilling to name what has happened in the presence - or even in the absence - of their abuser, so officers must be trained to look for particular signs, such as petechiae in and around the eyes. Where police, emergency medicine practitioners and social workers are concerned, it is vital that they are equipped with sufficient tools to recognise where the life or health of a victim might be at imminent risk; either in that moment or at a later stage, since strokes and other medical emergencies can occur some time after the incident itself because of injuries arising from strangulation. Because time is of the essence, fact sheets and toolkits should be produced as well as additional training, especially for specialist police services; even if the victim appears to be healthy, strangulation constitutes a medical emergency.
● Education can help ensure convictions and proper sentencing when these cases arrive at court by informing the public who will make up any jury of the seriousness of and danger posed by non-fatal strangulation. This is a vital piece of the puzzle, particularly since the current level of public awareness on this issue is far below where it needs to be.
● Education will help people recognise that, while the injury might be less visible than some others, non-fatal strangulation can be an indicator of a much more serious pattern of coercive control that puts the victim in imminent fear for their life and therefore victims find it harder to reach out for help. For that reason, education will have a valuable role in encouraging support organisations to look beyond the most obvious forms of injury and to exercise patience with regards to the needs of victims, who may take time to come to terms with what is happening to them and to be in a position to seek help.
● Education has a preventative effect – people recognise “red flags” more easily and doubt themselves less when the behaviour they experience has been the subject of a concerted educational campaign. This campaign must be properly resourced and ongoing, it should target people of all ages and demographics, including young people who are particularly vulnerable to non-fatal strangulation during sex, which has become increasingly common due to its widespread use in pornography. Studies by researcher Debby Herbenick show that an alarming 13% teenage girls who are sexually active report experiencing “choking” during sex that they did not consent to8 (properly, choking describes having a foreign object stuck in the throat, they are in fact describing strangulation) which is evidentially tied to the rise of this phenomenon in pornography. That pornography is increasingly accessible, and these conversations are shied away from in schools and homes increases the risk of these incidents by a great deal; it is entirely possible that these young people do not realise that they are experiencing a serious assault, or committing one, as the case may be, and they may feel like it is too difficult or not appropriate to reach out for help.
● RSE in schools needs to include an honest discussion on non-fatal strangulation alongside a discussion on domestic abuse and sexual violence. This issue needs to be placed both in the context of modelling healthy relationships and in the context of a frank discussion on consensual erotic asphyxiation as contrasted with non-fatal strangulation. As discussed above, young people are increasingly exposed to this through online pornography but rarely have the opportunity to hear about in an honest, dispassionate way that outlines the risks but stresses that there is a fundamental difference centred around consent. These conversations must be frank and direct, and address issues that are often seen as uncomfortable at best and considered deviant at worst. People must be made aware of the ways in which certain practices are portrayed as entirely unremarkable, for example in pornography, and may also pose very real risks. This is the most effective way to expose and undermine myths and also to ensure that those who do choose to engage in these acts do so with the best possible information on how to do so as safely as possible, understanding always that consent is essential.
8Khazan, Olga, The Atlantic (2019) The Startling Rise of Choking During Sex https://www.theatlantic.com/health/archive/2019/06/how-porn-affecting-choking-during-sex/592375/
Question 8: Do you consider something more/different is required to address non-fatal strangulation in Northern Ireland?
Please select: Yes
If YES please give details:
In addition to a new stand-alone offence of non-fatal strangulation, the new law should
ensure the following;
● The law must set out clearly what non-fatal strangulation means, how it presents itself, the impacts of it and the range of punishments for it
● As outlined above, we need appropriate and thorough training on this for the general public and for professionals who may encounter this in their work
● A check list or toolkit should be devised for professionals that may encounter non-fatal strangulation, to help them to recognise non-fatal strangulation when they encounter it, similar to that developed by the International Association of Forensic Nurses.9 This should be accompanied by training for first responders including police, EMTs and other relevant medical staff.
● We need public awareness and educational programmes that link non-fatal strangulation with its role in coercive control / domestic abuse / “rough sex” respectively, so that people understand that it may appear in a variety of settings and present in various ways, and know that this is criminal behaviour and that help is available.
● The roll out of the law needs to be monitored carefully so that useful statistics can be gathered, sensitive to section 75 characteristics, and helping legislators, support providers and the general public to understand the nature of the problem in enough detail to provide targeted and helpful interventions.
● All of this must be linked to a broader Violence Against Women and Girls (VAWG) strategy, which is presently planned by the Executive Office.
● A multi-disciplinary approach to the issue would benefit victims/survivors most, incorporating the various ways that this presents itself and also the ways that survivors may seek support, justice, or both.
We once again recommend that the Department of Justice re-examine the issue of the so- called “rough sex defence”. While definitionally not the same as non-fatal strangulation, where the victim survives to give their own testimony, we reiterate our argument that the current status quo does not adequately recognise the nature of strangulation during sex that results in death10. These cases very rarely include evidence that the death was planned or intended, meaning that the defendant cannot be shown to have the mens rea or murderous intent necessary for a charge of murder. This means that prosecution services are almost always unable to charge the defendant with murder, leaving manslaughter as the only option for a charge. This situation often leaves families feeling like justice has failed them, as the sentencing options are quite limited. We have seen already how, even after the so-called “rough sex defence” was banned in England & Wales, men are still being charged with manslaughter and facing only short sentences. In a recent case11, acknowledging disappointment with regards to the charge and the sentence, a CPS representative, said:
“While the defendant has always acknowledged the fatal consequences of his actions, he also claimed that it was never his intent to cause Sophie serious harm or, as was tragically the case, her death. We must make it very clear that the Crown Prosecution Service has not simply accepted the account put forward by the defendant, but that we have proactively determined that there was insufficient evidence capable of establishing beyond reasonable doubt that he intended the serious harm or death of Sophie Moss. In cases where death is caused by an unlawful act, but such intent cannot be proven, the appropriate charge to bring is one of manslaughter, for which we have built a robust case against the defendant.”12
As CPS have endeavoured to explain with regards to this case, this charging decision is not due to a special “rough sex defence”, rather a defence that the death was an accident, or manslaughter, and this defence cannot be banned – it is commonly used in murder trials of all kinds, and the only legal way to counter it is for prosecutors to present evidence that the death was premeditated. This will not always be possible, as such a new category of offence is necessary, parallel to the charge of causing death by dangerous driving.
The charge of manslaughter also fails to capture the recklessness of the act that led to the death of the victim. This is why we have proposed a route that would address this gap more thoroughly by focusing specifically on the recklessness involved, as it would create a new law capturing the fact that the death was caused by consciously reckless activity and disregard for consequence, as opposed to resulting from an accident. This new law would attract appropriate sentencing structures as well as more accurately reflect the nature of the wrong done to the victim.
We see this proposed offence as complementary to and parallel to the proposed non-fatal strangulation offence. Both would fill a gap in the current legislation by recognising the unique danger and harm caused by strangulation, whether it results in death or not, and correctly linking the phenomenon to intimate partner violence.