The Laws Regarding Sexual Choking In WA

Written by Jarryd Bartle.

The use of strangulation or choking during sexual intercourse is becoming an increasingly prevalent ‘kink’. However, this activity is not without its risks both bodily and legally.

The following outlines what is meant by the colloquial term ‘sexual choking’, noting relevant WA criminal offences and whether consent is a defence.

What is ‘sexual choking’?

Sexual choking is a sadomasochistic activity involving the use of one’s limb or a ligature to press or squeeze a partner’s neck during sexual activity.

Choking during sex is becoming increasingly prevalent amongst young adults. Whilst no Australian studies exist, Herbenick, et al (2021) found that 58% of young women in the US had been strangled during sex.

When undertaken consensually, sexual choking involves the application of pressure to the neck in pursuit of a state of ‘hypoxic euphoria’ – a pleasurable state that results from a lack of oxygen or blood flow to the brain.

Minor injuries that can result from sexual choking include bruises, petechiae and oedema. More serious consequences can include hyoid fracture, increased intracranial pressure, artery occlusion and death as a result of an oxygen-starved brain.

Whilst most people who undertake sexual choking activities don’t intend injury, the line between “casual BDSM” and domestic abuse can sometimes be blurred, and in certain circumstances, the criminal law may intervene.

The offence of suffocation and strangulation

Sexual choking could amount to the offence of suffocation and strangulation under the Western Australian Criminal Code.

Section 298 of the Code outlines an offence where a person unlawfully impedes another person’s normal breathing, blood circulation, or both, by manually, or by using any other aid to:

• block (completely or partially) another person’s nose, mouth, or both; or
• apply pressure on, or to, another person’s neck.

If prosecuted as an indictable offence, the maximum penalty for this offence is 5 years imprisonment for a standard offence or 7 years imprisonment if circumstances of aggravation exist.

If prosecuted as a summary offence the maximum penalty for this offence is 2 years imprisonment and a fine of $24,000 for a standard offence or 3 years imprisonment and a fine of $36,000 if circumstances of aggravation exist.

‘Circumstances of aggravation’ means circumstances where:

• the offender is in a family relationship with the victim of the offence;
• a child was present when the offence was committed;
• the conduct of the offender in committing the offence constituted a breach of an order; or
• the victim is of or over the age of 60 years.

Circumstances of aggravation do not apply if the offender was a child at the time of the offence or if the only circumstance of aggravation is the offender was in a family relationship with the victim at the time of the commission of the offence, or a child was present at the time of the commission of the offence, or both.

A ‘family relationship’ means a relationship between 2 persons:

• who are, or were, married to each other; or
• who are, or were, in a de facto relationship with each other; or
• who are, or were, related to each other; or
• one of whom is a child who ordinarily resides, or resided, with the other person; or regularly resides or stays, or resided or stayed, with the other person;
• one of whom is, or was, a child of whom the other person is a guardian; or
• who have, or had, an intimate personal relationship, or other personal relationship, with each other; or
• one of whom is the former spouse or former de facto partner of the other person’s current spouse or current de facto partner.

The alternative offence of common assault

The offence of common assault is an alternative offence to the offence of suffocation and strangulation.

Section 313 of the Code notes that an offence exists if a person unlawfully assaults another. The term ‘assault’ is defined under section 222 of the Code as:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

The maximum penalty for this offence is 18 months imprisonment and a fine of $18,000 for a standard offence and 3 years imprisonment and a fine of $36,000 if circumstances of aggravation or indicators of racial prejudice exist.

Is consent a defence?

Whether another person’s consent to being choked would amount to a defence depends on the offence charged and any injuries that result from choking.

Consent may or may not be a defence to a charge of suffocation and strangulation under section 298 of the Code. Whether consent amounts to a defence will depend on the particular circumstances.

For the charge of either suffocation and strangulation or a charge of common assault, consent to sexual choking would generally be a defence, but may be unlawful if injuries occur as a result of the choking.

Section 223 of the Code makes clear that the ‘application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person’.

Although the line dividing lawful and unlawful consensual assault is less clear in WA than in other jurisdictions, generally, if an assault results in actual bodily harm or more serious injury (including significant bruising, cuts or putting a person’s life at risk), consent will not be a defence to the charge (R v Brown [1993] UKHL 19).

As such, whether or not consent is a defence to a charge of suffocation and strangulation or a common assault charge for an act of sexual choking may depend on whether the choking resulted in injuries to another person.

Need Legal Advice?

Andrew Williams is an experienced Criminal Lawyer and Barrister in WA  who can provide you with expert legal advice in relation to strangulation and common assault.

Andrew offers a range of criminal law and traffic law services in Perth, Fremantle and all across Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.