Criminal Code Amendment Bill 2022 (No 4)
Wednesday 25 May 2022, Second reading speech
Ms ARMITAGE (Launceston) - Mr President, domestic violence and abuse are a hidden and most insidious scourge in our society. I will not regurgitate statistics but everyone in this room would likely know someone who has been directly or indirectly affected by it. Women and children are particularly vulnerable and we, as lawmakers, need to do what we can to ensure that vulnerable classes are protected and that we enact legislation in line with community expectations.
Non‑fatal strangulation and stealthing are acts that can happen in intimate settings. There are usually no witnesses and establishing an alleged perpetrator's guilt is an extremely difficult undertaking. This bill reflects the inherent danger of strangulation. We need to make sure that legislation surrounding domestic abuse and violence is not just informed by community expectations but also by evidence‑based understandings of context and other risk factors that dovetail with it.
Victims of non‑fatal strangulation are seven times more likely to be victims of future homicide. Non‑fatal strangulation is a risk factor for homicide and escalates as time goes on, and abuse and violence become more extreme.
The existing law, such as section 168 of the Criminal Code, limits circumstances involving choking to those where there is an intent to facilitate other offences. Specifically addressing non‑fatal strangulation in the context of family violence and abuse is, therefore, imperative. I refer to Women's Health Tasmania who comment in their support for these legislative measures that the creation of a standalone offence in its current form:
(1) Recognizes the voices of survivors of non‑fatal strangulation and the advocacy of specialist family violence services.
(2) Demonstrates to the community, the judiciary and the police the seriousness of non‑fatal strangulation.
(3) Increases awareness of non‑fatal strangulation as a 'red flag' for future homicide or serious injury.
(4) Codifies what is already recognised in sentencing guidelines and judicial rulings as a dangerous tactic of family violence.
Justice Estcourt, in the DPP v Foster case, stated that:
Strangulation is a form of power and control that can have devastating psychologically long‑term effects on its victims, in addition to a potentially fatal outcome.
Moreover, enacting this legislation will mean that earlier intervention can take place within the judicial system. It also means that victims/survivors will have a greater chance to avoid reaching the stage where non‑fatal strangulation becomes more extreme and violent, that they have greater access to the justice system and that they have more opportunities to receive support, counselling and medical treatments or interventions.
While I completely support this bill, I was curious about the insertion of the word 'unlawful' into clause 170B. It was answered this morning in briefings but I think it is worth asking it again, on the record, to get some detail.
My question was, is showing that a strangulation, choking or suffocation to be unlawful, as an entirely separate element, necessary for the offence to be established? Why would strangulation, choking or suffocating not be treated as a prima facie unlawful act? Is the addition of the word 'unlawful' to this clause really necessary and will it help achieve the goal of strengthening non‑fatal strangulation laws, as the Leader stated in her second reading speech? As I said, we did have an answer this morning in the briefings but I think it is worth putting it on the record.
Stealthing is another act that happens in intimate settings which puts people at significant risk and harm. We have seen cases over time, such as the R v Cuerrier case in Canada in the 1990s, where it was established that deliberate non-disclosure of a person's HIV‑positive status when they had unprotected sex constituted a prosecutable crime.
However, we should not allow the law to be reactive to cases like these, even if they are not always quite as extreme as a disclosure of a person's HIV status. Stealthing interferes with a person's sexual integrity and their ability to meaningfully consent to sexual acts. As we are all aware, sex without consent is, by definition, rape. The creation of stealthing as its own offence advances the law significantly towards what is expected by the community regarding sexual assault and sexual crimes. It is important to legislate on crimes that put vulnerable classes at risk. Stealthing is one such type of offence.
We, as lawmakers, must proactively legislate on offences that interfere with people's most intimate bodily agency and integrity. We should also continue to enact law reform measures like these that are evidence-based and reflect the standards and expectations of our community and of victims/survivors. The discrete amendments in this bill line us up with some of the other jurisdictions that have already made these changes.
Mr President, I support the bill.