Thursday, 16 November 2023

Crimes Amendment (Non-fatal Strangulation) Bill 2023

Introduction and first reading

The PRESIDENT (17:30): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Crimes Act 1958 to provide for 2 non-fatal strangulation offences and to make a consequential amendment to the Family Violence Protection Act 2008 and for other purposes’.

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:31): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Lizzie BLANDTHORN: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:31): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Crimes Amendment (Non-Fatal Strangulation) Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to protect and promote the rights of victim-survivors of family violence by implementing the following reforms:

• Amending the Crimes Act 1958 (the Crimes Act) to include two new offences of non-fatal strangulation:

• an offence of intentional non-fatal strangulation committed against a family member, with a maximum penalty of five years’ imprisonment (‘the 5-year offence’); and

• an offence of intentional non-fatal strangulation committed against a family member which intentionally causes injury, with a maximum penalty of ten years’ imprisonment (‘the 10-year offence’).

• Amending the Family Violence Protection Act 2008 to include choking, strangling or suffocating a family member, or threatening to do so, in the definition of family violence.

Human Rights Issues

The human rights protected by the Charter that are relevant to the Bill are:

• Right to life (section 9)

• Protection from torture and cruel, inhuman or degrading treatment (section 10)

• Privacy and reputation (section 13)

• Right to liberty and security (section 21)

• Rights in criminal proceedings (section 25)

Promoting the right to life (section 9) and the protection from torture and cruel, inhuman or degrading treatment (section 10)

Section 9 of the Charter provides that every person has the right to life and has the right to not be arbitrarily deprived of life and section 10 provides that a person must not be subjected to torture or treated in a cruel, inhuman or degrading way. The government is required to use all means necessary to protect the health and life of all persons in Victoria.

Introducing non-fatal strangulation offences promotes both rights. Non-fatal strangulation can be fatal or cause serious, long-term injury. It is a particularly serious form of offending when committed as an act of family violence, where it is an indicator of serious future risk, including homicide. In circumstances of family violence, non-fatal strangulation is rarely isolated and often indicates an ongoing and escalating pattern of violence and coercive and controlling behaviour. While this conduct is already criminalised, the nature and predictive elements of non-fatal strangulation can be obscured when offenders are charged with generic offences, which may also attract inappropriately low penalties. Creating standalone offences will assist police, early intervention services and justice agencies to better identify, monitor and respond to instances of non-fatal strangulation and family violence. By enabling these earlier responses, the reforms seek to reduce further instances of family violence and allow intervention prior to a potentially fatal outcome.

Privacy and reputation (section 13)

Section 13 of the Charter provides that every person has the right not to have their privacy (including private, consensual sexual behaviour), family, home or correspondence unlawfully or arbitrarily interfered with.

This right is promoted by the availability of consent as a defence to the 5-year offence, including when non-fatal strangulation occurs as a sexual activity. This reflects evolving sexual practices in the community. When injury is not intentionally caused, and parties are wholly consenting to the practice, their privacy should be protected and promoted by the law.

Consent is not available as a defence for the 10-year offence. I accept that this restriction may limit the right of Victorians to engage in private, consensual sexual behaviour, and I am satisfied that the limitation is reasonable and justified. Non-fatal strangulation is an inherently dangerous act which can cause loss of consciousness or prove fatal, even when consensual. These significant risks, which may not be present in other sexual practices, justify excluding consent as a defence to the 10-year offence – where injury is not just possible, but must be intentionally caused.

I am satisfied that there are no less restrictive measures that would protect Victorians without limiting this right.

Right to liberty and security (section 21)

Section 21 provides that every person has the right to liberty and security (section 21(1)); that a person must not be subjected to arbitrary arrest or detention (section 21(2)); that a person must not be deprived of his or her liberty, except on grounds, and in accordance with procedures, established by law (section 21(3)); and that a person awaiting trial must not be automatically detained in custody (section 21(6)).

The word ‘arbitrary’ has a particular legal meaning. In section 21(2) of the Charter, it broadens the right beyond freedom from unlawful arrest and detention – an arrest or detention will limit the right because it is ‘arbitrary’ if it is capricious, unjust, unreasonable or disproportionate to a legitimate aim.

The Bail Act 1977 (Bail Act) contains mechanisms to ensure bail decision makers pay particular attention to family violence risks when deciding whether or not to grant an accused bail. For example, in relation to bail applications for an accused charged with a family violence offence, the Bail Act specifically requires bail decision makers to consider the risk of the accused committing family violence if released and whether that risk could be mitigated either through bail conditions and/or the creation of a Family Violence Intervention Order.

Clause 5 of the Bill adds choking, strangling or suffocating a family member, or threatening to do so, to the list of behaviour that is considered family violence in section 5(2) of the Family Violence Protection Act 2008. By doing so, it ensures that Bail Act provisions which relate to family violence will apply to non-fatal strangulation offences, including the Bail Act’s definition of ‘family violence offence’. A further effect of this amendment may be that, if a person is charged with the offence of threat to kill, and the basis of the threat is choking, strangling or suffocating a family member, Schedule 2 of the Bail Act may apply. This would require a bail decision maker to apply the ‘show compelling reason’ reverse onus test in considering whether to grant bail for the offence of threat to kill as a family violence offence, which may reduce a person’s likelihood of being granted bail and limit the right to liberty and security. However, this is not a new limitation, as the conduct of threatening to choke, strangle or suffocate a family member would likely already meet the definition of family violence and could fall within schedule 2 of the Bail Act.

Requiring a deeper consideration of family violence risk when considering bail applications for those accused of these offences does engage the right to liberty and security. However, I consider this right is not limited as any deprivation of liberty that would occur would be on grounds, and in accordance with procedures, established by law and detention would not be arbitrary. This requirement seeks to promote victim-survivor safety by ensuring decision-makers turn their minds to the risks posed by non-fatal strangulation. However, it will not automatically lead to bail being refused if the bail decision maker considers that risk can be appropriately mitigated. This greater consideration of risks is complemented by the Bill introducing guiding principles for interpreting and applying the new offences (new section 34AC of the Crimes Act 1958), which will alert police, bail justices and magistrates to the potential and likely consequences of further offending by an accused.

Rights in criminal proceedings (section 25)

Section 25 of the Charter provides for various rights of a person charged with an offence during criminal proceedings. The right to be presumed innocent in section 25(1) is closely related to the protection against self-incrimination contained in section 25(2)(k) of the Charter. This right provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained before or after the charge was laid. Both the presumption of innocence and the protection against self-incrimination encompass the right to silence, which includes the right of an accused to be free from adverse inferences drawn from their silence. These rights are integral to the fairness of the justice system, given the grave consequences of being charged with a criminal offence, including potential loss of physical liberty, social stigma and psychological and economic harms.

Clause 3 of the Bill engages the right to the presumption of innocence and the right against selfincrimination through the addition of new sections 34AF–34AJ, which form the defence of affirmative consent for the 5-year offence. This defence will apply where the conduct constituting the offence – the choking, strangling, or suffocating – is committed as a sexual activity or in the course of a sexual activity. The defence will be made out where the complainant either consented, or the accused had a reasonable belief the complainant consented, to being choked, strangled or suffocated. The accused’s belief will not be reasonable if they did not say or do anything to ascertain consent.

When raising the defence, an accused person will need to point to sufficient evidence demonstrating that either the complainant consented or that they had a reasonable belief that the complainant consented. While the prosecution must then prove beyond reasonable doubt that the accused did not say or do anything, this may be easier to prove in the absence of any evidence from the accused and the defence may fail as a result. This may limit the right to be presumed innocent and the right against self-incrimination because the practical effect of the provisions may be that, even though not required by the legislation, an accused must lead evidence of certain matters as part of their defence. For example, they may decide to give evidence that they said or did something to ascertain consent. This may in turn abrogate their right to silence and freedom from adverse inferences being drawn from their silence, as well as expose them to broader cross-examination, including in relation to other elements of the relevant offence.

While I accept that this provision may limit an accused’s right to silence to some degree, I am satisfied that the limitation is reasonably justified for the reasons that follow.

The 5-year offence serves an important and pressing objective of addressing the prevalence of family violence in Victorian society, and its devastating and lifelong impact on the safety of women and children in particular. Non-fatal strangulation is an inherently dangerous act, with potentially severe consequences. It is also a significant predictor of future fatal violence. It is therefore important that when the 5-year offence occurs as or during a sexual activity, the available consent defence sets an appropriate standard of consent consistent with that applied to sexual offences.

Common law consent, which allows for consent to be inferred and only requires a defendant to believe that consent is present, even if that belief is unreasonable, is not an appropriate standard in this context. The Bill therefore adapts the affirmative consent model recently introduced by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 as a defence where the 5-year offence occurs as or during sexual activity. This sends a strong message about the importance of taking steps to obtain consent and how it must be obtained by those who participate in non-fatal strangulation during sexual activity. By requiring an accused to have said or done something to ascertain consent in order for that belief in consent to be reasonable, the Bill appropriately directs scrutiny to an accused’s actions in obtaining consent. This will support an effective justice system response to sexual violence and ensure consistency with Victoria’s high standards for consent in the context of sexual conduct.

Although this does limit rights in criminal proceedings, Parliament considered such a limitation was justified and proportionate when considering the 2022 affirmative consent reforms on which these reforms are modelled. The limitation is mitigated by the fact that the Bill does not place any legal burden on an accused to disprove elements of the offence charged, nor does it reverse the onus of proof in respect of the consent defence. Consistent with the usual allocation of onus of proof for defences, if the accused wishes to rely on the affirmative consent defence, they must point to sufficient evidence raising the defence. The burden is then on the prosecution to disprove the defence – in this case, to prove that the complainant did not consent, and that the accused did not have a reasonable belief. Hence, while the accused may decide to bring evidence in support of the defence, there is no legal or practical requirement that they do so, and where the prosecution does not disprove the defence beyond reasonable doubt, the defence will be able to succeed even where an accused does not give evidence.

In my view, there are no less restrictive means available to address consent in sexual contexts which have the same level of efficacy for victim protection. This is because the framing of the defence is clear and robust in expressing the need for reasonable belief in consent, and the associated actions a person must take.

I am also satisfied that sections 34AI(3) and (4), which impose a legal burden of proof on an accused to establish, on the balance of probabilities, that they have a cognitive impairment or mental illness that was a substantial cause of their failing to say or do anything to ascertain consent, is compatible with the Charter. My reasons are the same as those expressed in the Statement of Compatibility for the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, which introduced sections 36A(3) and (4) of the Crimes Act on which sections 34AI(3) and (4) are based.

As such, I am satisfied that reforms introducing the affirmative consent defence provisions for the 5-year non-fatal strangulation offence are compatible with the Charter. To the extent that they may limit rights in the Charter, those limits are moderate and reasonably justified to achieve a critically important aim.

Hon Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (17:32): I move:

That the bill be now read a second time.

Ordered that second-reading speech be incorporated into Hansard:

Strangulation is a highly dangerous and easily fatal form of violence which can cause unconsciousness within seconds and death within minutes. Blood clots, stroke, and brain damage caused by strangulation can cause death quickly, and up to weeks or months after the event. Victim-survivors of non-fatal strangulation may also suffer from long-term physical and/or mental disability as a result of the conduct.

Non-fatal strangulation is a particularly dangerous and insidious form of family violence. In circumstances of family violence, non-fatal strangulation is rarely an isolated event and often reveals an ongoing and escalating pattern of violence and coercive control. Someone who survives non-fatal strangulation by a current or former intimate partner is seven times more likely to be seriously injured or murdered by that partner. Because of this, non-fatal strangulation is recognised in Victoria’s Family Violence Multi-Agency Risk Assessment and Management framework as a serious risk factor, associated with increased likelihood of death or serious injury for victim-survivors. However, the absence of a stand-alone offence has been a barrier to appropriately responding to the serious and unique risk profile posed by family violence offenders who use non-fatal strangulation as a means of terror and control.

The Bill delivers on Victorian Government commitments, including in the 2023–2027 Gender Equality Strategy and Action Plan, to introduce a stand-alone offence of non-fatal strangulation. The offences introduced by this Bill will more effectively hold offenders to account and will also provide clearer indications to police and community service practitioners of escalating violence and control in family violence contexts. Additionally, the Bill aims to improve understanding of the dangers and potential lethality of non-fatal strangulation among police, courts and community service practitioners and help drive more effective medical, legal and law enforcement responses.

Much work has gone into developing these offences, and I want to thank stakeholders for their considered views. I would also like to acknowledge the powerful advocacy from the family of Joy Rowley, who was a victim of non-fatal strangulation prior to her murder.

The non-fatal strangulation offences

This Bill will introduce two new offences of non-fatal strangulation into the Crimes Act 1958 – an offence of non-fatal strangulation with a 5-year maximum penalty and an offence of non-fatal strangulation intentionally causing injury with a 10-year maximum penalty.

Both offences will capture a broad range of conduct

The offences will prohibit ‘choking, strangling or suffocating’ which will be defined, non-exhaustively, as:

• applying pressure to the front or sides of the neck

• obstructing or interfering with a person’s respiratory system, or

• impeding respiration.

Some Australian jurisdictions that have stand-alone offences have seen courts narrowly interpret the terms ‘choke, strangle or suffocate’ where these terms are not clearly defined. These narrow interpretations have imposed inappropriately high evidentiary burdens on the prosecution and may serve to further traumatise victim-survivors. The broad definition used in this Bill aims to avoid this issue.

For both offences, the conduct must occur between family members

While a broad definition of the prohibited conduct is appropriate, the government has listened to concerns that this definition increases the risk of inadvertently capturing conduct outside the scope of the intended reforms, with community groups who are already over-represented in the criminal justice system likely to be disproportionately affected.

Accordingly, the offences will only apply to conduct between family members. This will also focus on the main policy rationale of the reforms – to appropriately respond to the serious and unique risk profile posed by family violence offenders who use non-fatal strangulation as a means of terror and control.

The definition of ‘family member’ used in this Bill is the same broad, flexible definition used in the Family Violence Protection Act 2008. This definition includes children, parents, stepparents, siblings, current or former spouses and domestic partners, as well as current or former intimate personal relationships (which need not be sexual in nature). It also includes other relationships that could reasonably be regarded as like that of a family member. Community understanding of what makes someone a ‘family member’ continues to develop and change over time. Using this definition of ‘family member’ will ensure that the scope of the offences keeps up with contemporary community values and expectations.

In many cases, it will be clear whether a complainant and accused are family members without the complainant needing to give evidence. Accused persons will not be able to assert that they mistakenly and honestly believed they were not a family member of the complainant. However, they will be able to contest whether they met the definition of ‘family member’ at the time of the alleged offending.

The focus of this Bill on non-fatal strangulation of a family member is not intended in any way to minimise the seriousness of non-fatal strangulation in other contexts. The government hopes that the Bill will increase awareness of the risks and consequences of non-fatal strangulation more generally. Non-fatal strangulation that falls outside the scope of this Bill will continue to be dealt with by existing offences, such as causing injury offences and assault.

The 10-year offence

The 10-year offence is designed to capture conduct where the offender intentionally injures their victim with an act of non-fatal strangulation. ‘Injury’ includes both physical injury and harm to mental health. The element of intentional injury means there is a higher level of culpability attached to this offence, triggering the higher maximum sentence. It is also consistent with comparable existing offences that have 10-year penalties, such as conduct endangering life and intentionally causing injury. This offence is framed to capture the most egregious forms of non-fatal strangulation.

The 5-year offence

The unique nature of non-fatal strangulation means it often leaves no visible signs of physical injury, or injuries may only become evident weeks or months after the offending takes place. Historically, this has made prosecuting non-fatal strangulation challenging, with prosecutors resorting to charging offenders with common assault to get a conviction. Common assault only attracts a maximum penalty of three months, which is inadequate for such serious offending. The 5-year offence addresses these issues by imposing an appropriately high maximum penalty and only requiring that the offender choked, strangled or suffocated the victim-survivor – there is no requirement that the non-fatal strangulation cause injury, unconsciousness or incapacity.

Defences will be available for both offences

Existing common law and statutory defences such as self-defence, duress, or sudden and extraordinary circumstances will be available for both the 5-year and 10-year offence.

Consent will be available as a defence to the 5-year offence but will not be available for the 10-year offence in any circumstance. Excluding consent as a defence to the 10-year offence recognises that non-fatal strangulation with the intent of causing injury cannot be done safely. While this is a departure from the general position for other Victorian criminal offences, it is justified by the application of the offence to conduct against family members only, and the very serious risks posed by the conduct which caused that injury.

The 10-year offence also contains statutory exemptions for medical conduct and body modification performed in good faith. Statutory exemptions for the 5-year offence are not necessary as the lawful excuse of consent will operate to ensure the 5-year offence does not capture body modification or medical procedures.

Sexual activity and the defence of consent applicable to the 5-year offence

Consent will be available as a defence to the 5-year offence. The Victorian Parliament has long recognised that the common law defence of consent is not appropriate for sexual activities. As such, a new statutory defence of consent will apply where the non-fatal strangulation occurred as a sexual activity. In these circumstances, the defence will be made out where either the complainant consented to the non-fatal strangulation, or the accused reasonably believed the complainant consented. In line with the sexual offence reforms passed by Parliament in 2022, consent in this context will be defined as free and voluntary agreement and must be communicated – absence of resistance is not sufficient to establish consent, and consent cannot be assumed even if the parties had previously consented to the same sexual activity with their current or former partner. An affirmative consent model provides victim-survivors with stronger protections and recognises that sexual non-fatal strangulation is an increasingly common practice, particularly amongst young Victorians. The defence also incorporates the recent reforms to the meaning of ‘reasonable belief’, so that an accused cannot be found to have held a reasonable belief that the complainant consented if they did not say or do anything to determine whether their belief was correct.

The common law defence of consent will apply when non-fatal strangulation does not occur as a sexual activity. This will ensure that the 5-year offence does not inadvertently punish legitimate conduct between family members, such as occurs during contact sport, medical procedures, hugging, massages, and tattoos and other bodily adornment.

Guiding principles will assist courts and the wider community in understanding this form of family violence offending

Many known difficulties affect the identification and management of family violence offending. The risks of non-fatal strangulation have also not always been widely understood by those who come into contact with victim-survivors and offenders, contributing to low detection and prosecution rates. To support the new offences, the Bill contains guiding principles that courts must have regard to when applying the offences, including in sentencing. These principles include the fact that non-fatal strangulation often occurs within the context of family violence, is a predictive risk factor for future harm or even death, and that even short or individual periods of non-fatal strangulation can create an atmosphere of fear and compliance.

Consequential amendments will support implementation of the Bill

The Bill also amends the Family Violence Protection Act 2008 to insert choking, strangling or suffocating of a family member, or threatening to do so, into the list of behaviours constituting family violence.

This consequential amendment will ensure that that non-fatal strangulation is recognised as an act of family violence in family violence intervention order and family violence safety notice processes. It will also mean that the protections afforded by Part 8.2 of the Criminal Procedure Act 2009 to family violence complainants giving evidence in court will be available in non-fatal strangulation proceedings. Further, it will have the effect that bail decision makers must consider whether there is a risk of further family violence, and whether that risk could be mitigated, when considering whether to grant bail to persons charged with either of the non-fatal strangulation offences.

Conclusion

Introducing these offences into the Crimes Act 1958 will bring Victoria in line with most states and territories in Australia who have enacted stand-alone non-fatal strangulation offences. Given their significance, the government will liaise with stakeholders on the operation of these offences, to ensure they work effectively and as intended. This review process will also be able to draw upon experiences and learnings in other jurisdictions that have recently introduced stand-alone non-fatal strangulation offences.

This Bill is an important piece of legislation that will ensure appropriately serious penalties are available for this very serious form of offending. It will also provide better protection for victim-survivors, particularly in the context of family violence, and provide vital information to police and community service providers in how they understand, identify and assess family violence risk.

I commend the Bill to the house.

Evan MULHOLLAND (Northern Metropolitan) (17:32): I move:

That debate be adjourned for one week.

Motion agreed to and debate adjourned for one week.