Prosecution and defence strategies in non-fatal strangulation cases: are they influenced by victim brain injury and PTSD?

Abstract

Over the last two decades, offences for non-fatal strangulation (NFS) have been introduced in Australia and the United States (US). NFS can result in anoxic-hypoxic brain injury (AHBI) and post-traumatic stress disorder (PTSD), both of which impact on victims' memory and other capacities. This article engages in empirical analysis of Australian and US cases to examine prosecution and defence strategies in NFS cases, and whether those strategies are influenced by knowledge of victim AHBI and PTSD. Three themes emerge from this analysis. First, many NFS victims show signs and symptoms of AHBI and/or PTSD. Second, prosecutors adduce a variety of evidence at trial - but none on AHBI or PTSD. Third, defence counsel use signs and symptoms of AHBI and PTSD, and myths and misconceptions about NFS, to create doubt. The article recommends that the prosecution of NFS includes an explanation of AHBI, PTSD and their effects on victims.