*/
On 7 June 2022, the new offence of non-fatal strangulation and suffocation came into force in England and Wales. While published statistical analysis on charging rates and sentencing outcomes are still limited, increasing media and legal attention is being devoted to the high-level dangers which the offence presents.
Strangulation is now widely recognised as a particularly high-risk element of domestic abuse, usually within the context of controlling/coercive behaviour. In a different context, the normalisation of strangulation, or what is often erroneously referred to as ‘choking’ during sex is rising (with particular impact on younger women) and bringing with it complex questions of consent.
A significant percentage of young women state that they have experienced ‘choking’ during consensual sexual intercourse and a number of those also state that the experience was unwanted (Savanta ComRes Global, 2019). Yet even for those who nominally consent, it is questionable how informed such consent can be without an understanding of the potentially catastrophic consequences of the act and the ability to withdraw consent at any stage. In this regard, as one neuropsychologist has commented, strangulation is unique as ‘the very organ that is needed to withdraw consent is compromised by the activity to which that consent applies’.
The types of serious harm caused by strangulation are often externally invisible and sometimes delayed. A 2021 study (Bichard et al, 2021) of the neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence identified a range of serious impacts including hypoxic brain injury and stroke. Neurological outcomes included seizures, speech disorders, paralysis, changes to vision, voice, and sensory loss. Psychological outcomes included PTSD, depression, suicidality and dissociation. Cognitive and behavioural changes included memory loss, executive difficulties (eg problem-solving, judgement) and increased compliance. Studies have also reported an increased risk of miscarriage, particularly following multiple incidents. In a recent study of 204 women presenting following sexual assault in which they had been strangled, over 86% had symptoms which lasted after the assault (White et al, 2021).
In addition to these horrifying impacts, strangulation is usually extremely physically painful at the time of the offence itself and for many victims this physical pain is accompanied by the devastating psychological impact of believing they are going to die at the hands of their intimate partner (White et al, 2021).
The breadth and depth of such harms are still not understood across society. There is little recognition, for instance, that strangulation is thought to be the second most common cause of strokes in women under forty-two (Bichard et al, 2021).
While experts in the field emphasise the importance of all victims of strangulation being medically assessed as soon as possible, cases coming before the courts have, as yet, rarely followed this route. This omission puts victims at further risk as well as impacting upon the proper functioning of the criminal justice system. In the absence of complete and accurate medical evidence, it is easy to see how charging decisions, trials and sentencing decisions could be detrimentally affected.
Fifty per cent of strangulation victims will have no visible external injury to their head or neck (and this includes an absence of any red marks or bruising to the neck). Even fatal incidents where strangulation is the established cause of death often have no external markings (McClane, Strack and Hawley 2001; Gill et al 2013).
Understanding this crucial point is vital to ensuring that jurors and judges properly understand the evidence upon which they are deliberating and sentencing.
Currently, the absence of visible injuries to a victim alleging strangulation is likely to form a prominent feature of any contested case at trial. It can also carry significant weight for charging or sentencing decisions. An accurate assessment of such facts can only be achieved through the use of expert evidence, the importance of which will increase following the inevitable increase in jury trials for strangulation following the Court of Appeal’s recent guidance in R v Alfie Cook (2023) EWCA Crim 452. Without expert evidence to guide them in assessing the evidence, it would not be unreasonable for juries to incorrectly conclude that absence of injury is a point of evidence upon which they could place significant weight.
In New Zealand a free-standing offence of strangulation has been in force since December 2018 (and carries with it a maximum sentence of seven years’ imprisonment compared with five years in England and Wales). Expert evidence is regularly used to challenge myths and incorrect assumptions about strangulation including: why the lack of visible injuries does not mean a complainant hasn’t been strangled; that the neck is usually a protected area and as such neck and throat injuries are usually non-accidental and that certain surprising symptoms in the victim such as a hoarse voice or petechiae may be a direct result of strangulation.
Experienced New Zealand Senior Crown Prosecutor Mitchell McClenaghan states: ‘It is a common defence submission that lack of injury to the neck/throat means that there was no strangulation and therefore the complainant is lying. Having a medical professional in court explaining strangulation evidence prevents defence lawyers/prosecutors/judges improperly giving evidence (which is outside of their expertise) to the jury.’
Certain cases charged and sentenced in England and Wales under the new legislation illustrate the urgent need for such expertise before our own courts. Reported comments made by legal professionals in recent strangulation cases include an assertion that ‘none of these injuries indicate strangulation’; that ‘physical injuries caused by choking are often relatively minor’ and in a case where it was accepted that the victim had been pinned down with a knife to her throat while strangled until her vision ‘was going blurry’, that her injuries were ‘relatively minor’.
These misleading assertions, relied upon to influence outcomes for both victims and defendants could be corrected by brief, straightforward medical evidence. With regard to blurred vision for instance, Dr Helen Bichard, neuropsychologist with the North Wales Brain Injury Service and Honorary Fellow at Bangor University explains: ‘Changes to vision (eg blurring) is a neurological ‘red flag’ and a sign of the brain being under attack. It is the result of interrupted blood flow to various key regions of the brain involved in visual processing with resulting cell damage.’
Dr Cath White, Medical Director of the Institute for Addressing Strangulation and Member of the Faculty of Forensic & Legal Medicine agrees, stating: ‘This illustrates that it is crucial to take a thorough history of symptoms and signs from victims or those reporting incidents of strangulation, as details such as blurred vision, which may seem minor, illustrate the degree of attack. Sadly, many cases of strangulation don’t get such a medical response and therefore this opportunity is lost, to the detriment of their medical and forensic care.’
The unique nature and harms of strangulation as set apart from other physical assaults appear yet to have been absorbed into the day-to-day practice of the criminal courts since the offence came into force. In the absence of specific sentencing guidelines, advocates and courts quickly fell back on the assault guidelines for ABH which were wholly unsuitable for such a distinct form of offending. In a 2021 Criminal Law Review article, Professor David Ormerod and Dr Rory Kelly had stressed the importance of the new offence not being prosecuted and sentenced as ‘just another type of assault’.
The Court of Appeal agreed and in sentencing guidance issued in April 2023 noted the significant absence of any reference to injury or harm in the wording of the offence itself, emphasising: ‘The act of strangulation inevitably creates a real and justified fear of death. The victim will be terrified and often will be unconscious within a relatively few seconds if pressure is maintained. There is real harm inherent in the act of strangulation. ….’ (R v Cook).
For the offence of intentional strangulation, the court held that, save in exceptional circumstances, an immediate custodial sentence would be appropriate with a starting point of 18 months. A non-exhaustive list of aggravating and mitigating features are also set out in the judgment. These include ‘very short-lived strangulation from which the offender voluntarily desisted’ within the list of mitigating factors for consideration by the sentencing court.
However, medical experts caution against using duration as a mitigating factor without a complete understanding of the unique aspects of this offence. Dr Bichard says: ‘Duration would be a reasonable factor to consider if the pressure to the neck exerted in strangulation only affected breathing – we can all survive a few seconds without air, just like we can hold our breath. However, we now understand that the immediate danger in strangulation is the impact on oxygenated blood flow to the brain and deoxygenated blood from the brain due to compression of the arteries and jugular. This can begin to have an effect in seconds. The Red Wing Studies show that occlusion of the arteries leads to loss of consciousness at an average 6.8s (range 4-10s). Even before that, participants froze, unable to move (dyspraxia) and their pupils became fixed. …Physical damage to the neck and its internal structures can also happen in seconds. Trauma could result in arterial dissection which can then, perhaps delayed by weeks or even months, result in a clot breaking off and stroke.’
On this point, Dr White notes the frequency with which she has heard histories of repeat strangulation by controlling partners who following the first strangulation then employ brief ‘warning squeezes around the neck’ to terrorise or obtain ongoing compliance from their victims. Such incidents may well be very short-lived but can still amount to strangulation and ‘can still cause significant physical and psychological damage’. Voluntary desistance in such circumstances takes on a different complexion from that which the Court of Appeal is likely to have had in mind. Furthermore, where post-traumatic amnesia is a common impact of strangulation and 54.8% of victims who report losing consciousness or being incontinent due to strangulation are unable to say how long the strangulation lasted (White, 2021) ‘on what basis could a court reliably decide that the strangulation had been short-lived?’ asks Dr Bichard.
A notable feature of Mr Cook’s case is that this was not the first time he had strangled. On 6 June 2022 (the day before the new offence came into force) he had strangled the same victim – his partner of approximately two years. As the new offence was not in force he was charged with common assault of which he was convicted at the Magistrates’ Court. Following conviction he pleaded guilty in the Crown Court to his second strangulation but this time charged specifically as strangulation under the new offence. In February 2023 he was sentenced to 15 months’ imprisonment which was later upheld on appeal.
The judgment does not record what sentence Mr Cook received in respect of his first offence of strangulation, charged as a common assault. However, given the statutory maximum he could not have received more than a six-month sentence even after a trial (and is likely to have received less by reference to the relevant offence guidelines). By comparison, the Court of Appeal’s very clear stance that sentencing must reflect ‘the inherent conduct’ of strangulation itself demonstrates unequivocally the impact of the new offence and why it was necessary.
References:
Savanta ComRes Global 2019.
Bichard et al 2021: ‘The neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence’, Neuropsychological Rehabilitation, 32(6), 2021.
McClane, Strack and Hawley 2001: A review of 300 attempted strangulation cases part I: criminal legal issues.
Gill et al 2013: ‘Homicidal neck compression of females: Autopsy and sexual assault findings’, Academic Forensic Pathology, 3.
Kelly and Ormerod 2021: ‘Non-Fatal Strangulation and Suffocation’, Criminal Law Review.
White 2021: ‘I thought he was going to kill me’: Analysis of 204 case files, Journal of Forensic and Legal Medicine, Vol 79.
Getting help:
Sexual assault referral centres
SafeLives
Women’s Aid live chat service (8am-6pm weekdays; 10am-6pm weekends)
Freephone 24 hour National Domestic Abuse Helpline (England): 0808 2000 247; (Northern Ireland): 0808 802 1414; (Scotland): 0800 027 1234; (Wales): 0808 8010 800; Men’s Advice Line: 0808 801 0327
Respect helpline: 0808 802 4040 (for anyone worried they may be harming someone else) Monday-Friday 10am-5pm
Information for Victims of Strangulation, Institute for Addressing Strangulation.
Joanna Evans is a barrister, Deputy District Judge and Recorder. She is an international consultant to the Council of Europe on violence against women and is a member of the Expert Advisory Group for the Institute for Addressing Strangulation.
Nogah Ofer is a solicitor at the Centre for Women’s Justice, and heads a free legal advice service relating to violence against women in the criminal justice process.
On 7 June 2022, the new offence of non-fatal strangulation and suffocation came into force in England and Wales. While published statistical analysis on charging rates and sentencing outcomes are still limited, increasing media and legal attention is being devoted to the high-level dangers which the offence presents.
Strangulation is now widely recognised as a particularly high-risk element of domestic abuse, usually within the context of controlling/coercive behaviour. In a different context, the normalisation of strangulation, or what is often erroneously referred to as ‘choking’ during sex is rising (with particular impact on younger women) and bringing with it complex questions of consent.
A significant percentage of young women state that they have experienced ‘choking’ during consensual sexual intercourse and a number of those also state that the experience was unwanted (Savanta ComRes Global, 2019). Yet even for those who nominally consent, it is questionable how informed such consent can be without an understanding of the potentially catastrophic consequences of the act and the ability to withdraw consent at any stage. In this regard, as one neuropsychologist has commented, strangulation is unique as ‘the very organ that is needed to withdraw consent is compromised by the activity to which that consent applies’.
The types of serious harm caused by strangulation are often externally invisible and sometimes delayed. A 2021 study (Bichard et al, 2021) of the neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence identified a range of serious impacts including hypoxic brain injury and stroke. Neurological outcomes included seizures, speech disorders, paralysis, changes to vision, voice, and sensory loss. Psychological outcomes included PTSD, depression, suicidality and dissociation. Cognitive and behavioural changes included memory loss, executive difficulties (eg problem-solving, judgement) and increased compliance. Studies have also reported an increased risk of miscarriage, particularly following multiple incidents. In a recent study of 204 women presenting following sexual assault in which they had been strangled, over 86% had symptoms which lasted after the assault (White et al, 2021).
In addition to these horrifying impacts, strangulation is usually extremely physically painful at the time of the offence itself and for many victims this physical pain is accompanied by the devastating psychological impact of believing they are going to die at the hands of their intimate partner (White et al, 2021).
The breadth and depth of such harms are still not understood across society. There is little recognition, for instance, that strangulation is thought to be the second most common cause of strokes in women under forty-two (Bichard et al, 2021).
While experts in the field emphasise the importance of all victims of strangulation being medically assessed as soon as possible, cases coming before the courts have, as yet, rarely followed this route. This omission puts victims at further risk as well as impacting upon the proper functioning of the criminal justice system. In the absence of complete and accurate medical evidence, it is easy to see how charging decisions, trials and sentencing decisions could be detrimentally affected.
Fifty per cent of strangulation victims will have no visible external injury to their head or neck (and this includes an absence of any red marks or bruising to the neck). Even fatal incidents where strangulation is the established cause of death often have no external markings (McClane, Strack and Hawley 2001; Gill et al 2013).
Understanding this crucial point is vital to ensuring that jurors and judges properly understand the evidence upon which they are deliberating and sentencing.
Currently, the absence of visible injuries to a victim alleging strangulation is likely to form a prominent feature of any contested case at trial. It can also carry significant weight for charging or sentencing decisions. An accurate assessment of such facts can only be achieved through the use of expert evidence, the importance of which will increase following the inevitable increase in jury trials for strangulation following the Court of Appeal’s recent guidance in R v Alfie Cook (2023) EWCA Crim 452. Without expert evidence to guide them in assessing the evidence, it would not be unreasonable for juries to incorrectly conclude that absence of injury is a point of evidence upon which they could place significant weight.
In New Zealand a free-standing offence of strangulation has been in force since December 2018 (and carries with it a maximum sentence of seven years’ imprisonment compared with five years in England and Wales). Expert evidence is regularly used to challenge myths and incorrect assumptions about strangulation including: why the lack of visible injuries does not mean a complainant hasn’t been strangled; that the neck is usually a protected area and as such neck and throat injuries are usually non-accidental and that certain surprising symptoms in the victim such as a hoarse voice or petechiae may be a direct result of strangulation.
Experienced New Zealand Senior Crown Prosecutor Mitchell McClenaghan states: ‘It is a common defence submission that lack of injury to the neck/throat means that there was no strangulation and therefore the complainant is lying. Having a medical professional in court explaining strangulation evidence prevents defence lawyers/prosecutors/judges improperly giving evidence (which is outside of their expertise) to the jury.’
Certain cases charged and sentenced in England and Wales under the new legislation illustrate the urgent need for such expertise before our own courts. Reported comments made by legal professionals in recent strangulation cases include an assertion that ‘none of these injuries indicate strangulation’; that ‘physical injuries caused by choking are often relatively minor’ and in a case where it was accepted that the victim had been pinned down with a knife to her throat while strangled until her vision ‘was going blurry’, that her injuries were ‘relatively minor’.
These misleading assertions, relied upon to influence outcomes for both victims and defendants could be corrected by brief, straightforward medical evidence. With regard to blurred vision for instance, Dr Helen Bichard, neuropsychologist with the North Wales Brain Injury Service and Honorary Fellow at Bangor University explains: ‘Changes to vision (eg blurring) is a neurological ‘red flag’ and a sign of the brain being under attack. It is the result of interrupted blood flow to various key regions of the brain involved in visual processing with resulting cell damage.’
Dr Cath White, Medical Director of the Institute for Addressing Strangulation and Member of the Faculty of Forensic & Legal Medicine agrees, stating: ‘This illustrates that it is crucial to take a thorough history of symptoms and signs from victims or those reporting incidents of strangulation, as details such as blurred vision, which may seem minor, illustrate the degree of attack. Sadly, many cases of strangulation don’t get such a medical response and therefore this opportunity is lost, to the detriment of their medical and forensic care.’
The unique nature and harms of strangulation as set apart from other physical assaults appear yet to have been absorbed into the day-to-day practice of the criminal courts since the offence came into force. In the absence of specific sentencing guidelines, advocates and courts quickly fell back on the assault guidelines for ABH which were wholly unsuitable for such a distinct form of offending. In a 2021 Criminal Law Review article, Professor David Ormerod and Dr Rory Kelly had stressed the importance of the new offence not being prosecuted and sentenced as ‘just another type of assault’.
The Court of Appeal agreed and in sentencing guidance issued in April 2023 noted the significant absence of any reference to injury or harm in the wording of the offence itself, emphasising: ‘The act of strangulation inevitably creates a real and justified fear of death. The victim will be terrified and often will be unconscious within a relatively few seconds if pressure is maintained. There is real harm inherent in the act of strangulation. ….’ (R v Cook).
For the offence of intentional strangulation, the court held that, save in exceptional circumstances, an immediate custodial sentence would be appropriate with a starting point of 18 months. A non-exhaustive list of aggravating and mitigating features are also set out in the judgment. These include ‘very short-lived strangulation from which the offender voluntarily desisted’ within the list of mitigating factors for consideration by the sentencing court.
However, medical experts caution against using duration as a mitigating factor without a complete understanding of the unique aspects of this offence. Dr Bichard says: ‘Duration would be a reasonable factor to consider if the pressure to the neck exerted in strangulation only affected breathing – we can all survive a few seconds without air, just like we can hold our breath. However, we now understand that the immediate danger in strangulation is the impact on oxygenated blood flow to the brain and deoxygenated blood from the brain due to compression of the arteries and jugular. This can begin to have an effect in seconds. The Red Wing Studies show that occlusion of the arteries leads to loss of consciousness at an average 6.8s (range 4-10s). Even before that, participants froze, unable to move (dyspraxia) and their pupils became fixed. …Physical damage to the neck and its internal structures can also happen in seconds. Trauma could result in arterial dissection which can then, perhaps delayed by weeks or even months, result in a clot breaking off and stroke.’
On this point, Dr White notes the frequency with which she has heard histories of repeat strangulation by controlling partners who following the first strangulation then employ brief ‘warning squeezes around the neck’ to terrorise or obtain ongoing compliance from their victims. Such incidents may well be very short-lived but can still amount to strangulation and ‘can still cause significant physical and psychological damage’. Voluntary desistance in such circumstances takes on a different complexion from that which the Court of Appeal is likely to have had in mind. Furthermore, where post-traumatic amnesia is a common impact of strangulation and 54.8% of victims who report losing consciousness or being incontinent due to strangulation are unable to say how long the strangulation lasted (White, 2021) ‘on what basis could a court reliably decide that the strangulation had been short-lived?’ asks Dr Bichard.
A notable feature of Mr Cook’s case is that this was not the first time he had strangled. On 6 June 2022 (the day before the new offence came into force) he had strangled the same victim – his partner of approximately two years. As the new offence was not in force he was charged with common assault of which he was convicted at the Magistrates’ Court. Following conviction he pleaded guilty in the Crown Court to his second strangulation but this time charged specifically as strangulation under the new offence. In February 2023 he was sentenced to 15 months’ imprisonment which was later upheld on appeal.
The judgment does not record what sentence Mr Cook received in respect of his first offence of strangulation, charged as a common assault. However, given the statutory maximum he could not have received more than a six-month sentence even after a trial (and is likely to have received less by reference to the relevant offence guidelines). By comparison, the Court of Appeal’s very clear stance that sentencing must reflect ‘the inherent conduct’ of strangulation itself demonstrates unequivocally the impact of the new offence and why it was necessary.
References:
Savanta ComRes Global 2019.
Bichard et al 2021: ‘The neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence’, Neuropsychological Rehabilitation, 32(6), 2021.
McClane, Strack and Hawley 2001: A review of 300 attempted strangulation cases part I: criminal legal issues.
Gill et al 2013: ‘Homicidal neck compression of females: Autopsy and sexual assault findings’, Academic Forensic Pathology, 3.
Kelly and Ormerod 2021: ‘Non-Fatal Strangulation and Suffocation’, Criminal Law Review.
White 2021: ‘I thought he was going to kill me’: Analysis of 204 case files, Journal of Forensic and Legal Medicine, Vol 79.
Getting help:
Sexual assault referral centres
SafeLives
Women’s Aid live chat service (8am-6pm weekdays; 10am-6pm weekends)
Freephone 24 hour National Domestic Abuse Helpline (England): 0808 2000 247; (Northern Ireland): 0808 802 1414; (Scotland): 0800 027 1234; (Wales): 0808 8010 800; Men’s Advice Line: 0808 801 0327
Respect helpline: 0808 802 4040 (for anyone worried they may be harming someone else) Monday-Friday 10am-5pm
Information for Victims of Strangulation, Institute for Addressing Strangulation.
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