Protections in the justice system for women and girls
Non-fatal strangulation
Background
Non-fatal strangulation is when pressure is applied to a person’s neck. This is also known as choking or suffocation. Non-fatal strangulation is dangerous for a person’s health and safety. It is against the law.
While men and women may experience non-fatal strangulation, women are disproportionately more likely to experience the behaviour. This reflects a wider societal problem of women and girls experiencing harm arising from men’s violence.
Context of the issue being raised
Non-fatal strangulation is criminal under several different laws in Scots law, with the specific offence used depending on the facts and circumstances of the case.
There have been calls for Scotland to create a new standalone offence of non-fatal strangulation, similar to one that was introduced in England and Wales in 2022.
Victims have rightly raised concerns about ensuring the criminal justice system has the necessary powers to respond to the grave harm caused by such conduct, with a focus on delivering the necessary protections for women and girls. A standalone offence is seen as a way of doing this.
Our view
It is understandable why calls have been made to consider introducing new laws in Scotland in relation to non-fatal strangulation. However, we consider existing laws in Scotland provide comprehensive protection for victims of non-fatal strangulation, which go beyond that available in England and Wales.
We do not think new offences would add to the existing protections. Instead, we think that new offences may lead to an unintended consequence of weakening protection rather than strengthening it.
Separate to the criminal law, we agree that awareness-raising and improving data remain essential parts of a strategy to address non-fatal strangulation.
You can read about the differences in the laws in Scotland and in England and Wales below.
Differences in laws relating to non-fatal strangulation in Scotland and in England and Wales
Situation in Scotland
- conduct amounting to non-fatal strangulation can be classed as assault, culpable and reckless conduct or attempted murder, all of which have a maximum sentence of life imprisonment
- each of these offences can be aggravated by being “to danger of life”
- non-fatal strangulation can also be prosecuted as a domestic abuse offence, which has a maximum sentence of 14 years
- there is no defence of consent to non-fatal strangulation
- there is no requirement for injury or harm to allow for appropriate sentencing disposals to be available to the court
Situation in England and Wales
- the introduction of a standalone offence relating to non-fatal strangulation resulted from England and Wales not having an existing offence that could be used to effectively and appropriately prosecute non-fatal strangulation
- there is no equivalent to the Scottish domestic abuse offence, which allows for single items of behaviour such as non-fatal strangulation to be included as part of an overall course of behaviour
- there is a defence of consent in some contexts to non-fatal strangulation