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Non-fatal strangulation, non-fatal suffocation and the withdrawal of the rough sex defence

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This article deals with two new provisions which have been introduced by the government’s Domestic Abuse Act 2021 into the Serious Crime Act 2015 (section 75A and 75B).

On 7 June 2022 legislation creating the specific offences of non-fatal strangulation (section 75A(1)(a)) and non-fatal suffocation (section 75A(1)(b)) came into force. Subsequently, anyone who is convicted of either of these offences, could face up to five years in prison. Prior to these sections being introduced, if a victim made a complaint to the police that they had been strangled, the alleged perpetrator would have been investigated for having committed an assault. If no injury had been caused, this would have been a s.39 assault (with a maximum sentence of six months imprisonment and a strict time limit on when a prosecution could be brought).  

Furthermore, the introduction of Section 75B into the Domestic Abuse Act 2021 also enables someone to be charged with either offence if it is committed outside of the United Kingdom by a UK national or resident.  

What is the legal definition of non-fatal strangulation and non-fatal suffocation?

The Crown Prosecution Service (CPS) guidance states that the dictionary definition of ‘strangulation’ and ‘suffocation’ should be applied.  

In relation to non-fatal strangulation, the legislation states that ‘a person (A) commits an offence if A intentionally strangles another person (B).’ 

To be guilty of non-fatal strangulation the defendant must therefore have an intent to strangle (it cannot be committed accidently or recklessly). It is not necessary for a defendant to have an intent to cause an injury to the victim. Instead, the CPS guidance states that, even if gentle pressure is applied to the neck, this can be classified as strangulation.

In contrast, the legislation states that non-fatal suffocation involves a person (A) committing ‘any other act to B that affects B’s ability to breathe and constitutes a battery of B.’

Therefore, if a person’s ability to breathe is affected by someone unlawfully touching them, this will be classified as an offence. Furthermore, strangulation does not necessitate a certain level of pressure and/or force to be applied.

It should also be noted that a similarity between the offences of non-fatal strangulation and non-fatal suffocation is that an injury to the victim is not essential in order to prove either of the offences.

Is there a “rough sex” defence to non-fatal strangulation and non-fatal suffocation?

The campaign group ‘We Can’t Consent to This’ raised concerns regarding women being harmed during “rough sex”. They report that 38% of UK women under the age of 40 are assaulted and choked as part of sex which is otherwise consensual.

If the alleged victim consented to strangulation or suffocation during sex then consent could potentially form a defence. However, section 71 of the Domestic Abuse Act 2021 prevents a defendant from using ‘rough sex’ as a defence if actual bodily harm has taken place. Actual bodily harm can include more than minor bruising. This effectively restated the previous common law limits on the defence of ‘rough sex.’

The criminal defence team at Stephensons have already represented a number of people for these offences at the police station. If you are being investigated or charged with either of these offences, it is important that you obtain specialist legal advice at the earliest opportunity. At Stephensons, our criminal defence department have a combined 200 years of experience of successfully representing people facing criminal charges. If you do require our assistance, please do not hesitate to contact someone from the department on 0161 696 6188 or complete an online enquiry form.