Can Consensual Choking for Sexual Pleasure Amount to a Criminal Offence in NSW?

Sexual choking is an increasingly common “kink” involving the squeezing of a partner’s neck during sexual activity. 

This activity carries the risk of harming or even causing the death of the person upon whom the force is applied, especially if the person who applies the force takes it too far – despite not having an intention to cause harm.

The laws relating to choking, suffocation and strangulation were reformed in December 2018, bringing in a new offence of intentional choking without consent which applies whether or not a person is rendered unconscious or there is an intention to commit another offence.

But what about such acts that are undertaken with the consent of both parties.

Here’s a rundown on what may be considered an acceptable though potentially risky practise, and the laws that may apply.

A risky but prevalent kink

Whilst there are no good estimates of how prevalent sexual choking is in Australia, surveys from overseas indicate that it is an increasingly common activity amongst young adults.

A 2021 survey of 4352 randomly sampled undergraduates in the US found that 33.6% of women and 6% of men reported having been choked more than five times in their life within a sexual context.

Sexual choking is considered a “risky” sexual practice, even within kink communities, due to the risk of oxygen deprivation and death. One review of BDSM related fatalities in 2022 found that choking during sex was the most common cause of death.

In the Victorian case of R v McIntosh, a man was successfully prosecuted for manslaughter following the death of his lover who he accidently strangled to death whilst consensually pulling on a cord wrapped around his neck as part of erotic asphyxiation. 

The controversial death of trans woman Mhelody Bruno, who died at the hands of her lover Rian Toyer in 2019, also allegedly occurred within the context of consensual sexual choking. 

There are degrees of risk associated with sexual choking, with light pressure around the neck whilst avoiding the trachea being the least likely to cause complications, whilst the deliberate restriction of breathing being the most dangerous.  How the criminal law responds to sexual choking also depends greatly on the degree of force used. 

Non-fatal strangulation offences in New South Wales

The law in our state contains a number of offences against not consensual blocking of another person’s airways through the application of physical force. has a number of non-fatal strangulation offences that could apply within the context of sexual choking.

The newest of these offences is section 37(1A) of the Crimes Act 1900 (NSW), which makes it an offence punishable by up to 5 years in prison for a person to intentionally choke, suffocates or strangle another person without their consent, regardless of whether the other person is rendered unconscious or there is an nefarious motive for the act, such as the commission of another offence – like a robbery, theft or even a killing.

It’s important to note that lack of consent is an element of the offence and that, as such, consensual sexual choking on its own would establish the crime.

However, further offences exist under s 37 which will apply regardless of consent:

• Section 37(1) of the Act applies if a person intentionally chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance, whilst being reckless as to doing so. This offence carries a maximum penalty of 10 years imprisonment and consent is irrelevant to the prosecution of this offence.

• Similarly, s37(2) of the Act applies if a person intentionally chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance, and does so with the intention of enabling the commission or assisting in the commission of indictable offence. This offence carries a maximum penalty of 25 years imprisonment and consent is once again irrelevant to the prosecution of this offence.

In summary, non-fatal strangulation offences may apply within the context of consensual sexual choking if a person is rendered “unconscious, insensible or incapable of resistance” as a result.

Other Possible Offences

As we have discussed previously, many forms of consensual BDSM activities are criminalised in NSW if they result in “actual bodily harm”.

Potential offences that could apply in cases of consensual sexual choking include: 

• Section 59 of the Act which criminalises assault occasioning actual bodily harm (carrying a maximum penalty of 5 years imprisonment).
• Section 35 of the Act which criminalises the act of recklessly causing grievous bodily harm intentionally (carrying a maximum penalty of 10 years imprisonment).
• Section 33 of the Act which criminalises causing grievous bodily harm recklessly (carrying a maximum penalty of 25 years imprisonment).

Actual bodily harm includes harm which is more than “transient or trifling” Donovan [1934] 2 KB 498 and can include bruises, scratches or swelling. Sexual choking resulting in hoarseness of the throat or bruising would likely constitute actual bodily harm and could result in an offence regardless is all parties were consenting.

Grievous bodily harm involves “really serious harm” DPP v Smith [1961] AC 290 and will apply when a person’s airway is blocked to the point of unconsciousness R v Rhodes (1984) 14 A Crim R 124. 

As such, it appears only forms of consensual sexual choking involving light pressure carry little risk of criminal prosecution in NSW.