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This is a Bill, not an Act. For current law, see the Acts databases.


Crimes Amendment (Non-fatal Strangulation) Bill 2023

     Crimes Amendment (Non-fatal Strangulation)
                   Act 2023
                               No.         of 2023


                       TABLE OF PROVISIONS
Clause                                                           Page

Part 1--Preliminary                                                  1
 1       Purposes                                                   1
 2       Commencement                                               2
Part 2--Amendment of Crimes Act 1958                                 3
 3       New Subdivision (4A) of Division 1 of Part I inserted      3
 4       Statute law revision                                      12
Part 3--Consequential amendment of Family Violence Protection
Act 2008                                                           13
 5       Meaning of family violence                                13
Part 4--Repeal of this Act                                          14
 6       Repeal of this Act                                        14
                               ═════════════
Endnotes                                                           15
 1       General information                                       15




                                       i
      Crimes Amendment (Non-fatal
         Strangulation) Act 2023 
                    No.           of 2023

                           [Assented to                         ]


The Parliament of Victoria enacts:


                Part 1--Preliminary
     1 Purposes
             The purposes of this Act are--
              (a) to amend the Crimes Act 1958 to provide
                  for 2 non-fatal strangulation offences; and
              (b) to make a consequential amendment to the
                  Family Violence Protection Act 2008.




                              1
  Crimes Amendment (Non-fatal Strangulation) Act 2023
                 No.       of 2023
                  Part 1--Preliminary


2 Commencement
   (1) Subject to subsection (2), this Act comes into
       operation on a day or days to be proclaimed.
   (2) If a provision of this Act does not come into
       operation before 13 October 2024, it comes into
       operation on that day.




                          2
    Crimes Amendment (Non-fatal Strangulation) Act 2023
                   No.       of 2023
          Part 2--Amendment of Crimes Act 1958



Part 2--Amendment of Crimes Act 1958
 3 New Subdivision (4A) of Division 1 of Part I inserted
         After Subdivision (4) of Division 1 of Part I of the
         Crimes Act 1958 insert--

                  "(4A)      Non-fatal strangulation
      34AB Definitions
          (1) In this Subdivision--
               chokes, strangles or suffocates includes
                   doing any of the following things--
                      (a) applying pressure to the front or
                          sides of a person's neck;
                      (b) obstructing any part of, or
                          interfering with the operation of, a
                          person's respiratory system or
                          accessory systems of respiration;
                      (c) impeding a person's respiration;
               family member has the meaning given by
                    section 8 of the Family Violence
                    Protection Act 2008;
               injury has the same meaning as in
                    section 15;
               sexual activity has the meaning given by
                   section 35D and subsection (2).
          (2) If conduct constituting an offence against
              section 34AE(1) occurs during sexual
              activity (within the meaning of section 35D)
              that conduct is itself sexual activity for the
              purposes of this Subdivision.




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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


  34AC Guiding principles
           It is the intention of Parliament that in
           interpreting and applying this Subdivision,
           courts are to have regard to the fact that--
            (a) non-fatal strangulation of a person by a
                current or former intimate partner
                indicates that the person is, statistically,
                significantly more likely to be killed by
                the current or former intimate partner;
                and
            (b) in circumstances of family violence,
                non-fatal strangulation can indicate an
                ongoing and escalating pattern of
                coercive and controlling behaviour by
                the perpetrator; and
            (c) even very short or individual instances
                of non-fatal strangulation can
                demonstrate the perpetrator's physical
                dominance and control over the victim
                and create an atmosphere of fear and
                compliance; and
            (d) non-fatal strangulation will not always
                leave physical signs or injuries, and it
                can result in physical signs or injuries
                that only appear after weeks or months
                have passed.
  34AD Non-fatal strangulation intentionally
       causing injury
      (1) A person (A) commits an offence if--
            (a) A intentionally and without lawful
                excuse chokes, strangles or suffocates
                another person (B); and
            (b) A intends the choking, strangling or
                suffocation to cause an injury to B; and



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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


               (c) the choking, strangling or suffocation
                   causes an injury to B; and
               (d) A is a family member of B.
           Penalty: Level 5 imprisonment (10 years
                    maximum).
           Note
           A mistaken but honest and reasonable belief that A
           was not a family member of B is not a defence to this
           offence--see section 34AK.
      (2) For the purposes of subsection (1), it is not a
          lawful excuse that B consented to the
          conduct constituting the offence.
      (3) A does not commit an offence against
          subsection (1) if the conduct constituting the
          offence occurs in the course of a procedure
          carried out in good faith for medical or body
          modification purposes.
           Examples
           1      A tattoos B's neck at the request of B.
           2      A gives B a neck piercing at the request of B.
  34AE Non-fatal strangulation
      (1) A person (A) commits an offence if--
               (a) A intentionally and without lawful
                   excuse chokes, strangles or suffocates
                   another person (B); and
               (b) A is a family member of B.
           Penalty: Level 6 imprisonment (5 years
                    maximum).
           Note
           A mistaken but honest and reasonable belief that A
           was not a family member of B is not a defence to this
           offence--see section 34AK.




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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


      (2) For the purposes of subsection (1), if the
          conduct constituting the offence is a sexual
          activity, that B consented to that conduct is
          not a lawful excuse except to the extent
          provided for by section 34AF.
      (3) Nothing in subsection (2) or section 34AF
          prevents B's consent to the conduct
          constituting the offence from being a lawful
          excuse for the purposes of subsection (1) if
          that conduct is not a sexual activity.
      (4) Nothing in sections 34AG to 34AJ applies in
          relation to consent being a lawful excuse
          where the conduct constituting the offence is
          not a sexual activity.
   34AF Sexual activity and consent defence to
        offence of non-fatal strangulation
      (1) It is a defence to a charge for an offence
          against section 34AE(1) if--
            (a) the conduct constituting the offence
                was a sexual activity; and
            (b) either--
                   (i) B consented to the conduct; or
                  (ii) A reasonably believed that B
                       consented to the conduct.
      (2) In this section--
           consent has the meaning given by
                sections 34AG and 34AH.




                        6
Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


  34AG Sexual activity and consent defence--
       meaning of consent
           For the purposes of section 34AF(1)(b)--
            (a) consent means free and voluntary
                agreement; and
            (b) a person does not consent to the
                conduct constituting the offence just
                because they do not resist the conduct
                verbally or physically; and
            (c) a person does not consent to the
                conduct constituting the offence just
                because they consented to--
                   (i) a different sexual activity with the
                       same person; or
                  (ii) the same sexual activity with the
                       same person at a different time or
                       place; or
                 (iii) the same sexual activity with a
                       different person; or
                 (iv) a different sexual activity with a
                      different person.
  34AH Sexual activity and consent defence--
       circumstances in which a person does not
       consent
           For the purposes of section 34AF(1)(b),
           circumstances in which a person does not
           consent to the conduct constituting the
           offence include, but are not limited to, the
           following--
            (a) the person does not say or do anything
                to indicate consent to the conduct;
            (b) the person submits to the conduct
                because of force, a fear of force, harm
                of any type or a fear of harm of any


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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


                 type, whether to that person or someone
                 else, regardless of--
                   (i) when the force, harm or conduct
                       giving rise to the fear occurs; and
                  (ii) whether it is, or is a result of, a
                       single incident or is part of an
                       ongoing pattern;
                 Examples
                 Each of the following is a type of harm that can
                 be done to a person as described in this
                 paragraph--
                 (a) economic or financial harm;
                 (b) reputational harm;
                 (c) harm to the person's family, cultural or
                     community relationships;
                 (d) harm to the person's employment;
                 (e) family violence involving psychological
                     abuse or harm to mental health;
                 (f)   sexual harassment.
            (c) the person submits to the conduct
                because of coercion or intimidation--
                   (i) regardless of when the coercion or
                       intimidation occurs; and
                  (ii) whether it is, or is a result of, a
                       single incident or is part of an
                       ongoing pattern;
            (d) the person submits to the conduct
                because the person is unlawfully
                detained;
            (e) the person submits to the conduct
                because the person is overborne by the
                abuse of a relationship of authority or
                trust;
             (f) the person is asleep or unconscious;


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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


            (g) the person is so affected by alcohol or
                another drug as to be incapable of
                consenting to the conduct;
            (h) the person is so affected by alcohol or
                another drug as to be incapable of
                withdrawing consent to the conduct;
                  Note
                  This circumstance may apply where a person
                  gave consent when not so affected by alcohol or
                  another drug as to be incapable of consenting.
             (i) having given consent to the conduct,
                 the person later withdraws consent to
                 the conduct taking place or continuing.
   34AI Sexual activity and consent defence--
        reasonable belief in consent
      (1) For the purposes of section 34AF(1)(b)(ii),
          whether or not A reasonably believes that B
          is consenting to the conduct constituting the
          offence depends on the circumstances.
           Note
           See section 34AJ for the effect of intoxication on the
           standard to be applied in determining whether A had a
           reasonable belief.
      (2) A's belief that B consents to the conduct
          constituting the offence is not reasonable if,
          within a reasonable time before or at the time
          the conduct takes place, A does not say or do
          anything to find out whether B consents to
          the conduct.
      (3) Subsection (2) does not apply if--
            (a) A has a cognitive impairment or mental
                illness (other than the effects of
                intoxication that is self-induced within
                the meaning of section 34AJ); and




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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


            (b) that cognitive impairment or mental
                illness is a substantial cause of A not
                saying or doing anything to find out
                whether B consents to the conduct
                constituting the offence.
      (4) A bears the burden of proving on the balance
          of probabilities the matters referred to in
          subsection (3).
     Note
     References to A and B in this section are references to the
     same A and B referred to in section 34AE.
   34AJ Sexual activity and consent defence--
        effect of intoxication on standard to be
        applied in determining reasonable belief
      (1) In determining whether a person who is
          intoxicated has a reasonable belief at any
          time--
             (a) if the intoxication is self-induced,
                 regard must be had to the standard of a
                 reasonable person who is not
                 intoxicated and who is otherwise in the
                 same circumstances as that person at
                 the relevant time; and
            (b) if the intoxication is not self-induced,
                regard must be had to the standard of a
                reasonable person who is intoxicated to
                the same extent as the person and who
                is in the same circumstances as that
                person at the relevant time.
      (2) For the purposes of this section, intoxication
          is self-induced unless it came about--
             (a) involuntarily; or
            (b) because of fraud, sudden or
                extraordinary emergency, accident,
                reasonable mistake, duress or force; or


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Crimes Amendment (Non-fatal Strangulation) Act 2023
               No.       of 2023
      Part 2--Amendment of Crimes Act 1958


             (c) from the use of a drug for which a
                 prescription is required and that was
                 used in accordance with the directions
                 of the person who prescribed it; or
             (d) from the use of a drug for which a
                 prescription is not required and that was
                 used for a purpose, and in accordance
                 with the dosage level, recommended by
                 the manufacturer.
      (3) However, intoxication that comes about in
          the circumstances referred to in subsection
          (2)(c) or (d) is self-induced if the person
          using the drug knew, or had reason to
          believe, when taking the drug that it would
          significantly impair the person's judgement
          or control.
  34AK No defence of mistaken but honest and
       reasonable belief regarding relationship
            For an offence against section 34AD(1) or
            34AE(1), it is not a defence to a charge that,
            at the time of the conduct constituting the
            offence, A was under a mistaken but honest
            and reasonable belief that A was not a family
            member of B.
     Note
     References to A and B in this section are references to the
     same A and B referred to in sections 34AD and 34AE.
  34AL Review of amendments made by Crimes
       Amendment (Non-fatal Strangulation)
       Act 2023
      (1) The Attorney-General must cause a review
          to be conducted of the operation of--
             (a) this Subdivision; and
             (b) section 5(2)(ba) of the Family
                 Violence Protection Act 2008.


                         11
  Crimes Amendment (Non-fatal Strangulation) Act 2023
                 No.       of 2023
        Part 2--Amendment of Crimes Act 1958


        (2) The review must be commenced no later
            than 2 years after the commencement of the
            Crimes Amendment (Non-fatal
            Strangulation) Act 2023.
        (3) The review must be completed no later than
            6 months after it commences.
        (4) The Attorney-General must cause a copy of
            the review to be laid before each House of
            the Parliament no later than 14 sitting days
            after receiving it.".
4 Statute law revision
       In section 36B(3) of the Crimes Act 1958, for
       "subsection (2)(c), (ca)" substitute "subsection
       (2)(c)".




                          12
        Crimes Amendment (Non-fatal Strangulation) Act 2023
                       No.       of 2023
Part 3--Consequential amendment of Family Violence Protection Act 2008



Part 3--Consequential amendment of Family
       Violence Protection Act 2008
     5 Meaning of family violence
              After section 5(2)(b) of the Family Violence
              Protection Act 2008 insert--
            "(ba) choking, strangling or suffocating (within the
                  meaning of section 34AB(1) of the Crimes
                  Act 1958) a family member or threatening to
                  do so;".




                                 13
  Crimes Amendment (Non-fatal Strangulation) Act 2023
                 No.       of 2023
                 Part 4--Repeal of this Act



         Part 4--Repeal of this Act
6 Repeal of this Act
         This Act is repealed on 13 October 2025.
  Note
  The repeal of this Act does not affect the continuing operation of
  the amendments made by it (see section 15(1) of the
  Interpretation of Legislation Act 1984).
                ═════════════




                             14
             Crimes Amendment (Non-fatal Strangulation) Act 2023
                            No.       of 2023
                                        Endnotes



                                    Endnotes
1 General information
  See www.legislation.vic.gov.au for Victorian Bills, Acts and current
  authorised versions of legislation and up-to-date legislative information.
   
      Minister's second reading speech--
      Legislative Assembly:
      Legislative Council:
      The long title for the Bill for this Act was "A Bill for an Act to amend the
      Crimes Act 1958 to provide for 2 non-fatal strangulation offences and to
      make a consequential amendment to the Family Violence Protection
      Act 2008 and for other purposes."




                 By Authority. Government Printer for the State of Victoria.




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