A comparative analysis of non-fatal strangulation offences: Will the proposed s. 75A Serious Crime Act 2015 work for victims of domestic violence and abuse?

This article examines the new offence of Non-fatal Strangulation s. 75A Serious Crime Act 2015, inserted by s. 70 Domestic Abuse Act 2021 and concludes that further re-drafting should be considered. The creation of a specific crime of non-fatal strangulation is an issue previously considered and legislated for by a number of legal states and their experiences are a source that England and Wales should have drawn upon to avoid further legislative reform in this area. This has not happened and s. 75A, prompted by the call to better protect victims of domestic violence and abuse, has been drafted in a manner that will limit its ability to achieve this aim. This is evident by the limited language to describe and define the prohibited conduct and the complexity arising from the inclusion of a defence of consent in some circumstances. Given the potential educative function this offence has, these aspects of the new offence are a significant blow to campaigners seeking improvements to the criminal justice response to domestic violence and abuse. This article outlines the relevance of NFS to the social problem of domestic violence and abuse and makes the argument that a new specific offence is justified. It then explores from selected legal jurisdictions examples of NFS offences to draw out elements that have either assisted or hindered the prosecution of these cases. This comparative approach provides the basis for analysis of the s. 75A offence to determine what challenges it will present to the prosecutorial authorities.