Content Warning: domestic violence, choking, sexual activity
Liberal Democrat MLC Aaron Stonehouse says the WA government needs to get out of people’s bedrooms and stop trying to make choking sex play illegal.
“Today I went through the business paper of legislation before the Parliament and I discovered that the Attorney-General wants to make erotic asphyxiation illegal in Western Australia.” Stonehouse said in a media release sent to news outlets on Wednesday.
Stonehouse says that under the Family Violence Legislation Reform Bill 2019, strangulation and suffocation will be an offence in Western Australia regardless of whether someone consents to the act.
“While I’d rather not speculate on the amorous adventures of Western Australians, we can’t ignore the reality that the book Fifty Shades of Grey is one of the highest-selling titles of the last decade.”
“The unintended consequences of this ban are obvious. Couples may find themselves foul of the law for engaging in consensual activities in the bedroom. And choke holds – which are commonplace in mixed martial arts – could also be on the chopping block.” Stonehouse said.
The MP said he will oppose the changes when they come up for discussion in the Legislative Council and move amendments to make the proposed laws more specific.
“I will move an amendment to make consent a factor for strangulation and suffocation. This is consistent with how other states and territories in Australia treat this activity.”
“The Government has set itself the noble goal of tackling domestic violence – and I applaud them for that – but they haven’t really considered the unintended consequences of this legislation.”
“Consenting adults have a right to do what they wish in the privacy of their own bedroom, without the fear of the Attorney-General John Quigley breathing down their necks.” Stonehouse said.
Minister says the bill is an important step in tackling domestic violence
Simone McGurk, the Minister for Prevention of Family and Domestic Violence, disagreed with Stonehouse’s take on the bill, highlighting that it was already possible for consensual sexual activity involving choking or strangulation to be prosecuted. McGurk said the government has no plans to begin policing people’s bedrooms.
“This new offence is not about policing people’s bedrooms – it is about protecting the victims of domestic violence. We should not ask victims to prove that they did not consent to have a life-threatening act perpetrated against them.”
“Regardless of the context, suffocation or strangulation where a person’s breathing or blood circulation is impeded can have serious adverse consequences for a person’s life, health and safety.”
“It is possible that truly consensual sexual activity such as strangulation or suffocation could already be prosecuted under section 304 of the Criminal Code, which does not require lack of consent to make the act of endangering life, health or safety unlawful. There is no evidence to suggest that truly consensual acts of suffocation and strangulation, or other truly consensual private sexual acts, are currently being prosecuted under the Code.” Minister Simone McGurk told OUTinPerth.
The Minister said police would need a complaint to begin an investigation into someone’s conduct.
“In practice, whether or not such conduct is prosecuted would depend initially upon whether a complaint is made to Police. A complaint is unlikely to arise where the sexual activity is truly consensual. However, in the event a complaint is made, a decision will be made by investigating Police as to whether to lay a charge and by prosecutors as to whether prosecution is in the public interest.”
“The new offence may capture some consensual sexual activity. Regardless of the context, suffocation or strangulation where a person’s breathing or blood circulation is being impeded can have serious adverse consequences for a person’s life, health and safety.”
“In practice, whether or not such conduct is prosecuted would depend initially on whether a complaint is made to police. A complaint is unlikely to arise where the sexual activity is truly consensual. However, in the event that a complaint is made, a decision will be made by investigating police as to whether a charge will be laid, and by prosecutors as to whether prosecution is in the public interest.”
McGurk said the point of the Bill is to deal with high rates of family and domestic violence in the community, and strangulation has been shown to be a strong predictor of escalating violence.
“Strangulation is a strong predictor of escalating and potentially fatal violence in these circumstances. Research has found that a female victim of strangulation is 7 times more likely to be the victim of homicide, compared to other family violence victims.”
“An internationally respected expert on domestic violence and strangulation has described non-fatal strangulation as a “last warning shot” before death.” McGurk said.
“We cannot ignore the growing awareness of the inherent danger of non-fatal strangulation and how it can be a precursor to escalating violence. The potential consequences, from a medical point of view, are extremely serious. I truly believe that this change will save lives.”
“The legislation recognises the very severe potential consequences of suffocation and strangulation from a medical point of view, the frequency of this conduct in family violence situations and its significance as an indicator of future homicidal violence.”
International experts highlight growing use of choking sex play among younger people
Gael Strack, CEO of HOPE International who oversees the Alliance’s Training Institute on Strangulation Prevention is credited with describing non-fatal strangulation as a “last warning shot” before death in domestic violence situations. Strack heads an organisation that has been recognised as being at the forefront of combating domestic violence.
Last year they highlighted that choking during sex is becoming a more common practice among American youth, and it sometimes has fatal consequences.
Research conducted by Professor Debby Herbenick at the Indiana University School of Public Health found that more than one-third of women aged 18 to 24 have experienced choking during sex.
Among 14-to-18-year-old girls with sexual experience, more than one in eight has experienced choking during sex, she said. About one in 10 young adult men, too, reported that they had been choked, although women were most often the “targets” of choking. The nationally representative survey, conducted in 2016, did not ask whether the experience was consensual or unwanted. But it found that those younger than 30 are much more likely to have experienced choking during sex than older adults — its prevalence drops significantly among 40- to 60-year-olds.
Sex columnist Dan Savage speculated that the reason for the increased occurrence of choking during sex may be because of the influence of pornography. Savage made the comments while speaking on a panel last year. Savage speculated that clear consent is possibly more prevalent within the LGBTI community as he believes people have more in-depth discussions about what activities they are consenting to.
Retired United States Superior Court Judge Eugene Hyman shared his thoughts on the legality of choking behaviour during sex when he spoke at Bond University in Queensland last year. The domestic violence expert advocates for the practice being completely outlawed regardless of consent.
“How can you consent to what is the equivalent of playing Russian roulette?” he said.
“When there’s an increase of 600 per cent (risk) when the person has been non-fatally strangled before, in my opinion the choking sex game thing … can’t be legal.”
“It is impossible in my opinion to have a person consent. You can’t consent to something that is that dangerous any more than you can consent to Russian roulette, any more than you can consent to playing ‘chicken’ on a roadway where two cars are going towards each other at 100km/h to see which one is going to chicken out. You can’t do it legally.”
Graeme Watson
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