Choking, Suffocation, and Strangulation (Tas)

Every Australian state and territory now has an offence consisting of non-fatal choking, suffocation, or strangulation. In the past this, type of violence would lead to charges such as assault, attempted murder, or grievous bodily harm. However, in recent years, a growing recognition of the particularly serious nature of this type of violence has led to it being made a standalone offence. This page deals with the offence of choking, suffocation, and strangulation in Tasmania.

Legislation on choking, suffocation, and strangulation

In Tasmania, the offence of choking, suffocation, and strangulation is contained in section 170B of the Criminal Code Act 1924. This offence carries a maximum penalty of 21 years imprisonment.

What is strangulation?

The offence of choking suffocating or strangling a person occurs when a person deliberately does any of the following:

  • applies pressure to another person’s throat or neck
  • suffocates another person with an item such as a pillow or plastic bag
  • holds another person underwater.

Consequences of strangulation

Strangulation can cause death within a very short period of time. It can also cause death days, or even weeks, after the incident as a result of blood clots, stroke, or brain damage. Light pressure applied to the neck may lead to loss of consciousness in as little as 10 seconds due to the blocking of arteries or the closing off of the airway.

Strangulation may cause urination, defecation, and seizures. It may also lead to memory loss, vomiting, difficulty speaking, difficulty swallowing, sore throat and nausea.

However, strangulation often does not leave a visible injury.

Consent

Strangulation sometimes occurs on a consensual basis during sexual activity. For this reason, some states and territories have enacted legislation that explicitly makes strangulation an offence only when it occurs without the other person’s consent. However, the Tasmanian offence does not include this element.

It is likely that a prosecution for strangulation in Tasmania would succeed even where the accused person maintains that the alleged victim consented to the activity. This is particularly the case given the existence of section 53 of the Criminal Code Act, which states that a person does not have the right to consent to an activity that will cause their death or that is likely to cause death or maiming. However, the defence of consent may be arguable in some cases depending on the extent of violence that is alleged.

Defences

There are a number of defences that can be relied on in response to a charge of choking, suffocation, and strangulation. For example, an accused person may rely on the defence of self defence if they carried out the conduct in response to a physical attack and the conduct was a proportionate response to the level of danger they believed they were facing at the time.

If you have been charged with a criminal offence and believe you have a legal defence, it is important to seek legal advice as to the viability of that defence and the strength of the case against you at an early opportunity.

Family violence

Instances of choking, suffocation, and strangulation are most common in a family violence context. Many deaths have resulted from this type of assaults both in Tasmania and in the rest of Australia.

Research shows that a victim of this type of violent offending is statistically much more likely to become the victim of a fatal family violence assault.

The offence of choking, suffocation, and strangulation has been introduced in recognition of the very serious nature of this type of family violence, and of its demonstrated connection with subsequent instances of serious violence.

Jurisdiction

The offence is an indictable offence and will be finalised in the Supreme Court of Tasmania.

Other states and territories

All Australian states and territories now have a standalone offence consisting of non-fatal strangulation. In some states, such as Victoria and Queensland, this offence applies only to strangulation that occurs in a family violence context. An offence involving strangulation that does not occur between parties who are in a family relationship would have to be charged as another offence, such as assault.

In other states, such as New South Wales, the offence applies to any instance of violence involving strangulation and is not limited to family members.

If you require legal advice or representation in any legal matter, please contact Go to Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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