Aiming to better protect the safety of women from domestic violence in the ACT, on 4 November the ACT Legislative Assembly passed the Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (‘the Amending Act’). The Amending Act makes changes to three different areas of ACT law. The Amending Act introduces a new strangulation charge to the Criminal Code 1900, and creates a new category of ‘special interim order’ available under the Domestic Violence Protection Orders Act 2008. These two changes entered into force on 5 November 2015. The Amending Act also modifies the Evidence (Miscellaneous Provisions) Act 1991 to allow the initial police interview following a domestic violence incident to be admitted into evidence as the primary witness statement, and provides further protections for witnesses affected by stalking. However these changes will not come into effect until 4 May 2016.
The introduction of the new charge of strangulation to the Criminal Code is of particular interest, especially for feminists, because it is another example of the law attempting to recognise specific patterns of gendered harm. Strangulation is known to be a risk factor for domestic violence for women. The explanatory memorandum to the Amending Act notes that non-fatal strangulation ‘is a tactic often used in family violence to threaten, intimidate and control a victim’.
While a charge of strangulation was previously available in the ACT, it was criticised because it required that the act of strangulation intended to render another person insensible or unconscious. In situations where strangulation is a coercive tactic of family violence, this intention is not always apparent. While a charge of common assault might have been substituted where a person was not rendered unconscious, the charge of common assault is not appropriate because it effectively equates the seriousness of strangulation with ‘a punch’. Strangulation has previously also been difficult to prove because evidence of injury is either not present, or shows up much later.
The new ACT offence aims to address a gap in domestic violence legislation in a way that better protects women from domestic violence. It removes the requirement that a person be rendered unconscious or insensible. It only requires that the user of violence ‘intends and unlawfully chokes, suffocates or strangles another person’. This new change carries a penalty of imprisonment of five years. This sits between 10 years for ‘strangulation with intent to render unconscious or insensible’ and two years for common assault.
ANNE MACDUFF teaches law at the Australian National University.