In late 2023 the Victorian Parliament introduced the Crimes Amendment (Non-fatal Strangulation) Bill, which is expected to come into effect on 13 October 2024. The purpose of this new legislation, colloquially known as ‘Joy’s Law’, is to address a significant gap within the Crimes Act 1958 (Vic) and the Family Violence Protection Act 2008 (Vic) with respect to incidents of strangulation. Up until its inception, cases involving strangulation were dealt with under broad assault and injury provisions. Accordingly, amendments within the Bill are aimed at confronting Australia’s appalling record of domestic violence, which continues to plague the community.
Background to the Non-Fatal Strangulation Laws
In October 2011, a Victorian woman named Joy Rowley was tragically strangled to death by her intimate partner, James Mulhall. This was not the first instance of violence between the couple; over the previous eight months, Rowley had reported multiple strangulation attacks perpetrated by Mulhall to Victoria Police. Her death was avoidable and prompted a Coronial Inquest into her death in 2018.
During the inquest, the coroner heard evidence that between February 2011 and her tragic death, Ms. Rowley reached out to the police multiple times, seeking help in response to the violent behaviour of Mulhall. The inquest revealed that there were several opportunities for police to intervene and potentially prevent the escalation of his abuse. One critical moment came in February 2011, when Mulhall brutally attacked Ms. Rowley, by choking her and threatening her with a knife after she asked him to leave her home. Despite the severity of the assault, Mulhall was not charged, a decision that allowed his violent behaviour to continue unchecked over the following months.
Since her tragic and avoidable death, Rowley’s family, along with other advocates, have been fervently campaigning for the establishment of a specific offence for strangulation.
This ethos is reflected in the guiding principles of the legislation, which articulate that it is the intention of parliament that when applying the legislation, courts are to have regard to
(a) non-fatal strangulation of a person by a current or former intimate partner indicates that the person is, statistically, significantly more likely to be killed by the current or former intimate partner; and
(b) in circumstances of family violence, non-fatal strangulation can indicate an ongoing and escalating pattern of coercive and controlling behaviour by the perpetrator; and
(c) even very short or individual instances of non-fatal strangulation can demonstrate the perpetrator’s physical dominance and control over the victim and create an atmosphere of fear and compliance; and
(d) non-fatal strangulation will not always leave physical signs or injuries, and it can result in physical signs or injuries that only appear after weeks or months have passed.
Outline of the New Provisions
The amendments provide an unequivocal definition of ‘chokes, strangles or suffocates’, which includes applying pressure to the front or sides of a person’s neck, obstructing any part of, or interfering with the operation of, a person’s respiratory system or accessory systems of respiration and impeding a person’s respiration.
Flowing from this, the legislation introduces specific offences for non-fatal strangulation. These are articulated in section 34AD, which establishes an offence for non-fatal strangulation intentionally causing injury, section 34AE non-fatal strangulation
Section 34AD non-fatal strangulation intentionally causing injury
This section provides that a person commits an offence if they intentionally and without lawful excuse chokes, strangles or suffocates another person who is a family member with the intention that doing so will cause an injury to that person. The seriousness of this new offence is reflected by its maximum sentence being 10 years imprisonment.
Section 34AE non-fatal strangulation
This section provides that a person commits an offence if they intentionally and without lawful excuse chokes, strangles, or suffocates another person and that person is a family member. The seriousness of this new offence is reflected by its maximum sentence being 5 years imprisonment.
Defences to Non-Fatal Strangulation Offences
In addition to the new offences created by the bill, it also establishes consent specific defences relating to sexual activity. These defences are contained within section 34AF sexual activity and consent defence to offence of non-fatal strangulation. This section establishes that a person charged under section 34AE (non-fatal strangulation) may rely on the defence of consent if the conduct constituting the offence (i.e the strangulation/choking) was a sexual activity and the other party either consented or the person charged had a reasonable belief that the other party consented.
What does Consent Mean in this Context?
Under section 34AG, consent means free and voluntary agreement. The legislation makes it clear that a person does not consent to strangulation/choking just because they do not resist the conduct verbally or physically and just because they consented to—
(i) a different sexual activity with the same person; or
(ii) the same sexual activity with the same person at a different time or place; or
(iii) the same sexual activity with a different person; or
(iv) a different sexual activity with a different person.
Moreover, section 34AH provides circumstances in which a person does not consent. These include: where the person does not say or do anything to indicate consent to the conduct; the person submits to the conduct because of force, a fear of force, harm of any type or a fear of harm of any type. Examples provided include; economic or financial harm, reputational harm, harm to the persons’ family, cultural or community, harm to the persons employment, family violence (including psychological harm) and sexual harassment. A full list of the circumstances where a person does not consent can be found here.
Reasonable Belief in consent
Section 34AI provides context for what is considered ‘reasonable belief’ in consent. Rather unhelpfully, this section states that reasonable belief will depend on the circumstances. However, the legislation does give some guidance with respect to the impact that intoxication may have on reasonable belief in consent. Per section 34AJ, if the intoxication is self-induced, then regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time and if the intoxication is not self-induced, regard must be had to the standard of a reasonable person who is intoxicated to the same extent as the person and who is in the same circumstances as that person at the relevant time.
Amendments to Family Violence Protection Act
In addition to the amendments to the Crimes Act (as articulated above), the new provisions have brought a small amendment to the meaning of family violence in section 5(2)(b) of the Family Violence Protection Act. In accordance with the amendments, family violence has been expanded to include choking, strangling or suffocating (within the meaning of section 34AB(1) of the Crimes Act 1958) a family member or threatening to do so.
How Galbally Parker Lawyers Can Help with Accusations of Non-Fatal Strangulation
Accusations of non-fatal strangulation are serious and can have significant legal consequences. At Galbally Parker Lawyers, we provide expert legal representation to individuals facing these charges. Our experienced team understands the complexities involved in these cases and works diligently to build a strong defence tailored to the specific circumstances of each client. We guide you through the legal process, ensuring your rights are protected and exploring all possible avenues to achieve the best outcome. If you are facing non-fatal strangulation charges, contact our Melbourne Defence Lawyers for reliable and skilled legal support.
