Improving protections in the justice system for women and girls: consultation

Non-fatal strangulation

The issue

This section explains the significant harm caused by conduct amounting to non-fatal strangulation; sets out the context in which non-fatal strangulation has been raised as a matter of concern in Scotland; provides details of how relevant laws operate in Scotland, including explaining important differences with the operation of law in England and Wales; and lays out key considerations and Scottish Government views on this issue.

Consultees are asked for their views on a number of questions.

The harm caused to women and girls

What is non-fatal strangulation?

Non-fatal strangulation is when pressure is applied to a person’s neck. It is also known as “choking” or “suffocation”. It describes an action that compromises breathing. The pressure can be applied by a person to a victim’s neck by their hands, knees or other parts of their body, or by objects such as belts or cords.

Non-fatal strangulation is dangerous. It is dangerous for a person’s physical and mental health, and it is dangerous for a person’s safety.

The health risks are clear - the neck is the bridge between the head and the body and contains vital structures. Non-fatal strangulation can not only reduce the flow of oxygen to the brain and can damage the brain, but blood vessels and the windpipe can also be damaged.

Long-term effects vary, with memory loss often arising and more significant harm -such as increasing the risk of strokes - evident. Thyroid glands may also be affected, which can damage swallowing and speaking. Miscarriages are also associated with the behaviour.

Alongside physical health risks, there is damage to mental health. Anxiety, depression and loneliness are often associated with experiencing non-fatal strangulation.

Personal safety is a major concern with non-fatal strangulation. Individuals use non-fatal strangulation to exert coercive control within relationships. Individuals who carry out such behaviour are also associated with being more likely to carry out other severe violence and even killing their partner.

Why women and girls suffer disproportionate harm

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.

The context of the issue being raised

Since January 2025, the Citizen Participation and Public Petitions Committee has been considering a petition calling on the Scottish Government to make non-fatal strangulation a standalone criminal offence in Scotland. The petition highlighted that non-fatal strangulation is increasingly recognised as a severe form of domestic abuse. The petition outlined a 2024 review showing that 81% of non-fatal strangulation victims were women, and 97% of perpetrators were male.

It was considered that the introduction of non-fatal strangulation legislation in England and Wales has revealed the extent of this crime (between June and December 2022, 8,375 non-fatal strangulation offences were reported, with 971 charges) and that Scotland could follow the example set to protect women and girls by making non-fatal strangulation a standalone crime.

In terms of the benefits that the petition seeks, raising awareness of the dangers of non-fatal strangulation and improving data to understand the extent of non-fatal strangulation are both relevant.

The current law

Non-fatal strangulation is criminal conduct in Scotland. Unlike England and Wales, committal of an offence in Scotland does not require injury or harm to allow for appropriate sentencing disposals to be available to the court. There is also no defence of consent in Scotland. This was not the situation in England and Wales, and the context in which new laws were developed there is different to the Scottish legal context.

Non-fatal strangulation is criminal under several different laws in Scots law, with the specific offence used depending on the facts and circumstances arising.

Conduct amounting to non-fatal strangulation can be classed as assault, culpable and reckless conduct or attempted murder. Each of these offences can be aggravated by being “to danger of life”.

Statutory offences in the Sexual Offences (Scotland) Act 2009 can be used. In particular, the offence of sexual assault can be used for non-fatal strangulation.

The Domestic Abuse (Scotland) Act 2018 introduced a new domestic abuse offence. This offence is what is known as a “course of behaviour” offence. As such, individual items of behaviour can be captured as part of an overall course of behaviour that amounts to a domestic abuse offence. In situations where the non-fatal strangulation conduct has been committed against a partner or ex-partner, this item of behaviour can be part of an overall course of behaviour under the domestic abuse offence.

For the domestic abuse offence, it is the overall course of behaviour that requires to be corroborated (more than one source of evidence) rather than individual actions. This means that there must be evidence that supports the overall course of behaviour rather than each individual act that makes up the offence. This presents a significant benefit in terms of being able to include behaviour within the offence that may generally take place in private - such as non-fatal strangulation - where it is more difficult to obtain corroborated evidence.

Where conduct amounting to non-fatal strangulation is prosecuted and injury has occurred, then the law allows for the relevant offences to be aggravated in terms of the injury, impairment or disfigurement that has been suffered by the victim. This allows the court to be told about the injury suffered, and the court can take it into account when considering the sentence. Even where there is no visible injury, the Crown Office and Procurator Fiscal Service (COPFS) may be able to establish that the offence was aggravated by being a “danger to life”.

In respect of the maximum sentencing penalties available, the law provides the court with powers to impose up to life imprisonment where the conduct constitutes or is part of an offence prosecuted as a common law offence such as assault. When prosecuted as a sexual offence such as sexual assault, the maximum penalty is life imprisonment. A maximum sentence of 14 years is available when the conduct is part of the domestic abuse offence.

Therefore, the law in Scotland provides a range of offences that can be used to hold perpetrators of acts of non-fatal strangulation to account.

COPFS, as the independent prosecution service in Scotland, has indicated they take a robust prosecution approach to non-fatal strangulation.

There is recent Scottish case law that ensures a robust response is available to non-fatal strangulation specifically within a sexual context. The recent decision of the Appeal Court in Sean Kirkup v His Majesty’s Advocate reiterated that consent is never a defence to a charge of assault.

In this judgment, the court specifically stated that “it would have been reasonably foreseeable that choking a person or slapping them on the head would be regarded as an assault and hence criminal”.

This means that where someone strangles or carries out another type of physical attack on another person where the conduct carries inherent dangers to cause serious harm, such conduct is not considered consensual sexual activity. This is the case whether or not the people are in a relationship. This means that the threshold for criminality is the intention to deliberately do the act amounting to non-fatal strangulation regardless of whether the victim has consented.

It is within this overall context that the law in Scotland can be seen as providing comprehensive legal protections for victims of non-fatal strangulation.

Notwithstanding this comprehensive legal framework, there have been calls made to consider changes to Scots law with reference made to the position in England and Wales.

It is important to note that the changes in England and Wales made in recent times reflect the specific legal position in that jurisdiction and do not have read across to Scotland. In fact, there may be a potential risk in weakening Scots law through adopting the approach taken in England and Wales.

In England and Wales, the introduction of a standalone offence relating to non-fatal strangulation resulted from the laws there not having an existing offence that could be used to effectively and appropriately prosecute non-fatal strangulation. The law in England and Wales restricted prosecution in cases where there was no visible injury to minor offences that carry limited sentencing powers. To respond to this, the UK Government decided to create a new offence.

This situation does not arise in Scotland. Even in cases of non-fatal strangulation where no injury arises, maximum penalties for relevant offences up to life imprisonment are available. While sentencing decisions in any given case are always a matter for the independent court, the introduction of a new specific Scottish offence would not strengthen sentencing powers already available.

England and Wales do not have an equivalent domestic abuse offence 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.

The Scottish domestic abuse offence provides a benefit in terms of the evidential burden for prosecution where the non-fatal strangulation is part of an overall course of behaviour.

The introduction of a new specific offence could result in use of the new offence with its higher evidential burden. This could likely be at the expense of non-fatal strangulation being included as an item of behaviour within a course of behaviour for the domestic abuse offence with its lower evidential burden. This may mean it is more difficult for justice to be delivered through introduction of a new offence.

The law in England and Wales has a defence of consent in some contexts to non-fatal strangulation. Scotland does not have a defence of consent in this way, which means greater protection is offered under Scots law than English and Welsh law as an individual cannot claim, as a defence, that a person consented to the conduct amounting to non-fatal strangulation.

The introduction of a new specific offence with consent as a defence would significantly weaken the existing protections in Scots law and may lead to the unintended extension of a defence of consent to other behaviour.

Key considerations

It is understandable why calls have been made to consider introducing new laws in Scotland in relation to non-fatal strangulation. 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.

Current laws in Scotland have three key benefits in dealing with non-fatal strangulation that are relevant in assessing delivering outcomes for women and girls:

• sentencing powers up to life imprisonment, even where no injury or harm arises
• evidential benefits afforded by use of the domestic abuse offence to allow for non-fatal strangulation to be included within a course of domestic abuse behaviour
• consent does not feature as a defence to non-fatal strangulation

Separate to the criminal law, awareness-raising and improving data remain essential components of a strategy to address non-fatal strangulation.

Scottish Government view

We consider existing laws in Scotland provide comprehensive protection for victims of non-fatal strangulation. These laws provide protection which goes beyond that available in England and Wales with, specifically: extensive sentencing powers available; evidential benefits arising from the operation of domestic abuse law; and no defence of consent operating.

We do not consider new offences would add to the existing protections and instead we consider new offences may lead to an unintended consequence of weakening protection rather than strengthening protection.

Consideration was given to whether developing a statutory aggravation relating to non-fatal strangulation conduct may allow for some benefits to arise in terms of, for example, awareness-raising of the dangers of such conduct and improved recording of data on non-fatal strangulation that is subject to criminal sanction. However, a statutory aggravation could not be developed, as an aggravation is an additional aspect of an offence being committed, which has to be distinct from the conduct amounting to an offence itself. Non-fatal strangulation is either an offence in its own right - for example, common law assault - or as part of a course of behaviour for a domestic abuse offence. The idea of creating a statutory aggravation is therefore not appropriate.

Given a statutory aggravation is not appropriate, requiring better recording within the criminal justice system of conduct amounting to non-fatal strangulation can be considered. This would not be an aggravation, but would require the criminal courts to take steps to record relevant cases where a conviction relates entirely, or in part (if a domestic abuse offence) to non-fatal strangulation conduct.

Question 1: Do you agree with the Scottish Government view on the benefits arising from the operation of current law in relation to non-fatal strangulation?

Question 2: Do you agree with the Scottish Government view for better recording of criminal cases where non-fatal strangulation arises?

Separate to the issue of the law, there have been further calls for greater public health awareness of the consequences of non-fatal strangulation in consensual relationships. In response, NHS Reform has provided detailed guidance highlighting that it is a criminal offence to cause harm through strangulation.

Question 3: Do you have views on how best public awareness can be improved as to the dangers of non-fatal strangulation?

Question 4: Do you have any other views on steps to address the dangers of non-fatal strangulation?