Consensual strangulation defence under the law

WQ.60/2026

WRITTEN QUESTION TO THE MINISTER FOR JUSTICE AND HOME AFFAIRS

BY DEPUTY M.B. ANDREWS OF ST HELIER NORTH

QUESTION SUBMITTED ON MONDAY 2nd MARCH 2026

ANSWER TO BE TABLED ON MONDAY 9th MARCH 2026

Question

"Further to the inclusion of consensual strangulation as a defence under the Draft Crime (Strangulation) (Jersey) Law 202- legislation, will the Minister advise whether there was any public consultation regarding the inclusion of this defence in the Law and if any concerns were raised, and if no such consultation was undertaken, will she explain why not?"

Answer

The Draft Crime (Strangulation) (Jersey) Law 202- is part of a wider package of 5 laws that I have lodged with the aim of improving the ability of our criminal justice system to respond to crimes associated with violence against women and girls, and introduce new, meaningful protections for victims.

This  legislation  has  been  delivered  at  considerable  pace.  I  accepted  the  VAWG  Taskforce's recommendations relating to legislation at the end of April 2024 and successfully lodged this package of legislation less than two-years later. It would not have been possible to deliver this package of legislation during this short term of government, if I had undertaken public consultations for each of the five pieces of legislation.

Moreover, as the legislative recommendations from the VAWG Taskforce originated from their research with victim-survivors, young people, professionals and the public – it was considered that a high level of public consultation had already taken place, and that Islanders had demonstrated strong support for the introduction of a specific, standalone offence of strangulation.

I note that there have been some concerns as to why a defence of consent has been included for this new offence of strangulation.

At first glance, it may seem that the inclusion of such a defence is at odds with our wider aim of support for victims of crimes associated with violence against women and girls, I certainly shared similar concerns during the initial phases of legislative development and so it is important to explain why a defence of consent has been included.

The question of consent to strangulation is typically considered in the context of sexual relations. As a signatory of the European Convention on Human Rights, Jersey has a series of obligations related to upholding our Islander's Human Rights. Article 8 of the Convention, which relates to Rights to Private Life, protects the right to personal development and autonomy. Sexual activity is associated with an individual's exercise of free choice under this Article, and it is therefore necessary to include a defence in cases where a person has consented to this act in order to avoid imposing unlawful restrictions on a person's ability to exercise their own personal autonomy.

The inclusion of this defence was therefore necessary to comply with our Human Rights obligations. However, I have included a series of clear restrictions on the use of this defence, to avoid its misuse as far as possible. This includes:

• Shifting the burden of proof onto the defence: If the accused wants to use the "consent defence" then the burden is on them to prove that, on the balance of probabilities, the victim consented to the act of strangulation. This means that victims are not placed in the position of having to prove they did not give consent.

• Limiting the defence to cases where there is no serious harm: The "consent defence" is only available where the victim has not suffered serious harm, or where they did suffer serious harm but the accused did not intend to cause them serious harm, and was not reckless as to this result. In practice, we know that victims of strangulation almost always suffer serious harm and therefore, in almost all cases, this defence will not be available to the accused. It would also be incredibly hard for the defence to argue that the accused strangled the victim, but was not reckless as to causing them serious harm.

These provisions align with the defence provisions for the strangulation offence in England and Wales, under Section 75A of the Serious Crime Act 2015. Their experience has demonstrated that these restrictions on the "consent defence" make it extremely difficult for the defence to successfully argue consent.