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30th November 2023 10:42
Victorian Legislative Council, Melbourne

Rachel PAYNE (South-Eastern Metropolitan) (10:41): 

I rise to speak to the Crimes Amendment (Non-fatal Strangulation) Bill 2023 on behalf of Legalise Cannabis Victoria. This bill introduces two new offences of non-fatal strangulation into the Crimes Act 1958. The first offence, of intentional non-fatal strangulation against a family member, carries a maximum penalty of five years imprisonment. The second offence, where strangulation of a family member causes injury and where no consent defence is available, carries a maximum penalty of 10 years imprisonment.

The bill will also ensure non-fatal strangulation is recognised as an act of family violence for the purposes of family intervention orders, in protections for witnesses giving evidence and in the consideration of bail applications. These changes bring Victoria into line with many other Australian states, and we hope they will have the effect of improving knowledge among frontline workers of the risks of strangulation as an indicator of escalating patterns of violence and coercive control.

Those who are subject to non-fatal strangulation by a current or former intimate partner are seven times more likely to be seriously injured or murdered by that same partner. This is the dangerous fact that underpins this reform. Family violence is an epidemic, and something that we as members of Parliament should be up in arms about. Sixty-four women have lost their lives this year, having been violently murdered by someone they know – men they have been in intimate relationships with, have had children with, once loved.

It is absolutely tragic. Family violence impacts so many directly and indirectly. I know within my own family my mother and her sisters are completely traumatised by growing up in a violent household, seeing their mother beaten, fearing their father and copping beatings themselves. The abuse was insidious, ongoing and harmful both physically and emotionally.

This bill takes a step in recognising the complexity of family violence and how perpetrators operate.

However, it would be remiss of me not to review this legislation for all unintended consequences, and there are some. At law ‘causes injury’ is a relatively low threshold. At its lowest it could mean temporary pain. Paired with a broad definition of strangulation in the bill – applying pressure to one’s neck – this could unintentionally capture consenting family members who are not at all engaged in family violence.

It could be two siblings who are involved in the ever increasingly popular sport of jujitsu practising their chokeholds, which is a central part of that popular sport. Choking and strangulation techniques are quite common in this sport, as in many other martial arts.

Or it could be a couple who are engaged in completely consensual BDSM in the bedroom, and we are not necessarily talking about a small minority of the population here.

For those unfamiliar, BDSM stands for bondage, discipline or domination, sadism and masochism. It is sexual activity involving such practices as the use of physical restraints, the granting and relinquishing of control and the infliction of pain. Most generically think of Fifty Shades of Grey, which was the fastest selling paperback of all time. At its peak two copies of that book were being sold every second.

Worldwide by 2015 more than 150 million copies had been sold. This phenomenon brought BDSM into the mainstream, and you cannot tell me this has not led to widespread experimentation in many Victorian homes, at least. There is minimal data on the prevalence of the BDSM community in Australia, and what data does exist is becoming increasingly outdated as our society moves towards a most tolerant and sex-positive place.

But 2003 figures suggested that over half a million Australians had engaged in BDSM in the last 12 months. The reality is that in the course of many sexual relationships, parties may desire the intentional infliction of pain and consensual sexual choking and not necessarily in small numbers. This means that in its current form this bill could unintentionally criminalise thousands of members of the Victorian community for consensual sexual activity that is not family violence.

I would like to thank the government for taking the time to meet with us on this aspect of the bill and for listening to our concerns on the potential for this bill to capture activities outside of its intended scope. We know the BDSM community is one for all ages. It is a community that engages in informed conversations and understands consent, often in a much more nuanced and understanding way than the wider community.

As kink educator Roger Butler puts it, what is often neglected in mainstream media depictions of BDSM is:

“… the incredible negotiation and consent-giving process that goes into the scene before it even starts. How to look after each other, how to keep each other safe. All that communication doesn’t make for good television, but it does make for great sex.”

There is also the potential for this bill to unintentionally criminalise a much wider group of consenting adults. To that point – and thank you to my zoomer staffers for pointing this out to me – currently at the top of the ARIA singles chart is Jack Harlow’s Lovin On Me. In this song Jack says:

“… I’m vanilla, baby … I don’t like no whips and chains …

… and you can’t tie me down …

… I’ll choke you, but I ain’t no killer, baby …”

For those unfamiliar with the term ‘vanilla’, in a sexual context it describes someone with a conventional approach to how they have sex. I am quite enjoying how red-faced everybody is getting in this room. Now, I do not know about the research methodology Jack Harlow used when writing this song, but the message is clear.

Even someone who has self-proclaimed vanilla sex says he includes consensual choking in his sexual repertoire. As I said, that is the most popular song, thanks to my staff informing me of this, on the ARIA charts right now, which is as mainstream as you can get.

I make this point to stress that the unintended consequences of making these laws could be broader than this Parliament realises, and perhaps there is a wider conversation to be had here about the need for comprehensive sex education to enable sexual empowerment and to reduce harm.

But my point is that the potential unintended consequences of this bill are far from niche. This legislation is so important, but it is important that we fulfil its intention without the government stepping into the bedrooms of consenting adults.

We, like the government, are supportive of amendments to insert a review clause for no later than two years after this bill commences.

I would suggest that the review considers a consent defence for both new offences, a more precise definition of injury or possibly a higher threshold for serious injury. A review of this kind will help ensure that the bill is operating as intended, and we do take comfort in that.

In the meantime I look forward to some assurances from the Attorney-General in the committee of the whole as to the intention of this bill and, importantly, what it is not intended to do, and we urge the government to bolster this reform with well-funded education.

To return to the central purpose of this bill, these are very important reforms, and we unequivocally support the policy intent of the bill to address dangerous family violence and coercive control.


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