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‘Rough sex’ defence ban: A step in the right direction

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Few argue that the Domestic Abuse Bill will settle disagreements on consent in law, but fruitful discussions cannot begin where there is no agreed starting point, says Lancaster Uni law student Haitham Salih

The banning of the ‘rough sex’ defence for violent crimes is certainly not a conclusive step in the protection of vulnerable victims.

However, it is undoubtedly progress in ensuring perpetrators of heinous crimes are appropriately sentenced. Further, it should help to prevent the unjustifiable ‘secondary victimisation’ of the individual by prohibiting the besmirchment of their character. Importantly, doing so in a manner congruous with the existing legal framework for sex offences and the role of consent.

For context, the ‘rough sex’ defence, also known as the ‘50 Shades of Grey‘ defence, refers to a claim made by a defendant mostly in a case of homicide during sexual activities. A claim stating that the victim had consented to having serious harm inflicted upon them for sexual gratification, so they must lack the intent to kill or cause grievous bodily harm. The veracity of these claims is often contested, as well as whether it should even be a relevant factor worth considering at all.

The claim that a victim’s death was caused from sexual acts gone awry is not new to the courts, despite not being a recognised defence for homicide. Nonetheless, it has been used at least 60 times in the UK, according to activist group ‘We Can’t Consent To This’. Of these killings, it is claimed that 45% have resulted in reduced sentences, altered charges to a lesser offence, acquittal or even no charges at all. In the past decade we have seen a 90% increase of such cases which, hopefully, soon decline. The perpetrators should going forward have commensurate charges brought against them, and sentences imposed on them that befit the depravity of such conduct.

Strangulation to the point of death (among other injuries) that occurred in the, now infamous, killing of Grace Millane show what appears to be the shameless use of the ‘rough sex’ defence employed in circumstances that appear entirely to show the opposite. Perhaps, it is regarded a convenient tool. Dr Stuart Hamilton notes it is hard to disprove a lack of intent since in autopsies there is little distinction. He says:

“If you strangle someone deliberately in order to kill them or if you’ve seen something on the internet and decide to give it a go and it goes horribly wrong, the physical findings aren’t going to be all that different.”

Additionally, to account for its rising relevance, such practices in the bedroom seem to be becoming more relatable to the public who are increasingly participating in these types of conduct. It is unclear why the defence is being used more still; a sentiment echoed by Dr Samantha Pegg, criminal law lecturer at Nottingham Trent University. She says:

“It does seem over the last year or so that there has been absolutely a significant shift and people do seem to be using that excuse of sadomasochism. It might just be that shift in culture and they think a jury might believe them, or in fact it might be true.”

The trial process is unfortunately often traumatic for victims and witnesses in the best of times. Nowhere might this be truer than in victims of harrowing sexual violence who later become victims once more to the ‘sex gone wrong’ defence. Sinisterly, it reframes the crime itself, as though the woman not only brought about her own assault, but that the men helplessly acquiesced to their victim’s request. Inconceivable mental gymnastics are at play here, substantiated by a perverse trawl through their victim’s sexual history.

One may argue that the ban on this defence is an inappropriate delve into the intimate matters of private individuals and what they are free to consent to, that it is wrong to interfere in what happens to allegedly consenting adults. This argument fails when such a violation of the private lives of the victims is necessitated whenever the defence is invoked.

Further, one simply cannot fathom the pain the victim’s families must endure hearing these potentially false assertions on the part of the defendant against their loved one who may no longer be with them. In those cases, the victims have neither the opportunity to defend themselves nor provide their own account. Millane had, without her consent, her alleged sexual disposition speculated upon by the defendant as well as the media who reported all of it. It is highly probable that none of the victims would have approved of these disclosures to the public which will not appear in this article for that reason.

The publicising of this invasive ‘information’ will likely deter victims and their families from speaking out against their aggressors and seeking justice in the courts. There are enough hurdles to clear and sources of pain for families in that position, that we should not be enabling defendants to create more without good reason.

There is sufficient reason for this ‘change’ in the law beyond the moral justifications. The approach taken to determine the extent to which someone can give legal consent to harm is one of category-based exemptions. An example of exemptions made societally can be found in R v Barnes which demonstrated that engaging in some sports gives implicit consent to the risk of harm even including grievous bodily harm.

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The main authority on consent to harm in sexual matters is R v Brown that states that consent cannot be given lawfully in sadomasochistic activities which do not form an exemption. This is generally the approach taken by the courts though it is fair to say that cases like R v Wilson that seem to be diametrically opposed muddy the waters.

Accordingly, Dr Pegg believes the newly passed bill would change virtually nothing, merely consolidating the existing position of the courts.

“At the moment it’s no defence at all to say that person is consenting, because of Brown. People certainly can’t consent to being killed, they can’t consent to injury which amounts to actual bodily harm if it’s in the course of S&M.”

The provisions of the newly passed bill, the Domestic Abuse Bill 2019-21, regarding the ‘rough sex’ defence may consolidate the existing common law position, but what of its legitimacy in relation to relevant statues?

Unsurprisingly, we find our focus primarily on the Sexual Offences Act 2003, particularly considering its aims. A Home Office review in 2000 outlined many objectives that gave rise for the need for the statute. One principle worth noting is that:

“[T]he criminal law has a vital role to play … where society decides that children and other very vulnerable people (including victims of sexual abuse) require protection and should not be able to consent. It is quite proper to argue in such situations that an adult’s right to exercise sexual autonomy in their private life is not absolute.”

As important as this principle is the statement that the statute was brought about to give clarity to the “patchwork quilt of provisions ancient and modern that … [lack] coherence and structure”.

The success of the statute in achieving these aims is disputed but the legitimacy of such goals are not. The proposed changes to the laws of consent in the new bill should make progress in pursuit of these aims. The application of the ‘rough sex’ defence has consistently been contentious, and laws that settle a conflict in the common law should be welcomed. Certainty and transparency are key principles to uphold in maintaining the rule of law.

Critics of the bill may argue that if real consent was given by the victims and the tragic results were genuinely accidental, then the defence is reasonable and that it is a mitigating factor relevant at least in sentencing. However, whether this is agreeable is not that pertinent as a question of current law. The position has been, for over 25 years, that consent for such activities is not recognised legally.

Therefore, the question that ought to be posed is; given the current common law position, should consent of the victim be an admissible factor in cases of sexual conduct that results in serious harm?

From this reformulation of the question, it seems clear that it could not logically be found to be a relevant factor in one’s defence unless the underlying position on consent to harm as part of sadomasochistic activities were to change.

Until then, the bill provides a logically coherent and clear resolution; without any consensus families and victims have suffered nothing short of smear campaigns, and many repugnant crimes have not been met with appropriate charges or sentences.

Few argue that the bill will settle disagreements on consent in law, but fruitful discussions cannot begin where there is no agreed starting point. I hope and believe that this proposed change, due to be debated in the House of Lords still, will be the first step in the right direction to protecting victims and ensuring justice is served.

Haitham Salih is a first-year law student at Lancaster University. He has an interest in commercial law.

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10 Comments

Anonymous

Or a step in the wrong direction…

Anonymous

interesting article

thank you 🙂

anonymous

Why limit it to one activity ? Surely if rough sex is no defense, neither is rough rugby, or rough boxing? If two ( or more) people are consensually engaged in a rough activity, and one person dies as a result, it may be murder, or it may be manslaughter, or it may have happened despite all reasonable care and not be an offence at all.

And consent is irrelevant; Of course consenting to roughness in any activity is not consent to serious harm, but the actions that are being judged are the alleged perpetrator, not the alleged victim.

Conviction at all costs is not a good goal

Alan

Great article. You highlight the pertinent issues very well.

One minor bit of feedback if it’s not too cheeky. It might have helped to actually quote S.65, or at least the main subsection. You do allude to the provisions in your piece, and that’s great for the lay reader, but lawyers might be assisted by seeing the relevant statutory language.

A far too nuanced comment for LC

Surprisingly insightful article, though I do have a few arguments to add that I think need to be fleshed out, and are not.

First, the author doesn’t hide the fact that the priority in their view is victim protection, even signing off on that as a key take away. This is not at all a contentious issue, and all legislation and other sources of law must be made in consideration of protecting victims.

Where I do take issue with this though, is the fact that it entirely ignores fairness and justice regarding the defendant in such a scenario. I cannot help but feel that this is because of a stereotype being increasingly developed that Defendants (often, but not exclusively, male) in sexual offences are guilty, once an accusation has been levied. In short, post MeToo, we are no longer just developing a narrative of ‘believe the victim’, but we are over-correcting for past tendencies of not protecting victims and now going for a ‘do not believe the defendant’ narrative.

And here is where my point becomes case specific: Homicide during sexual activity is not the same as committing rape, or other sexual offences, because the sexual conduct in itself is not the crime, the homicide is. If a Defendant is being charged with homicide, but not with any sexual offences, it seems to me (personally) unreasonable not to take into account the fact that it may have been a consenting couple experimenting, and that experiment going awry.

What if it is a happily married / co- habitating couple who are experimenting, and one of them, either man or woman, takes a consensual sex act too far with tragic consequences? Is it not also traumatic for them, to be responsible for the death of their partner? Denying this defence would in fact not only open up the full scope of punishment for homicide, but may also be traumatic to the defendant in such a scenario, and we cannot ignore that risk, if the wellbeing and prevention of trauma to all involved parties is our objective. It’s also important to note that this defence may have easily been codified, not as a full defence, but as a defence that reduces a sentence from murder, to manslaughter. Such defences already exist in the common law, so this wouldn’t be too far from precedent.

Moreover, being a defence, it can be disproven. There are many more factors at play than just the physical damage at autopsy, and the courts do have the discretion to keep certain details confidential. expanding those confidentiality powers would seem a much easier solution to this problem than banning the defence outright.

Overall, from a strict ‘follow precedent’ perspective banning the defence is a legitimate move, however, I have my sincere doubts about the universal benefit it would bring as argued for in this article.

Caveat: My point is exclusively based on a scenario whereby two consenting adults engage in sexual experimentation, and no forceful, or coercive behaviour induced the sexual activity itself. I think it is a crucial distinction that must be drawn, in order for this point to be clearly understood.

A Barrister

Isn’t there a fundamental misunderstanding at the heart of this article? There is no such thing as a rough sex defence to murder. It’s not a defence. It does raise a factual dispute about whether or not there was intent to kill or cause really serious harm.

Just Anonymous

This. Absolutely this.

There is a fundamental issue here over what the ‘defence’ being deployed here actually is. In my view, it is not ‘consent’ per se. In other words, the argument is not that the deceased consented to her own killing and thus that the killer has no liability (the very argument often advanced in the context of assisted suicide).

Rather, the ‘defence’ is that the killer lacks sufficient mens rea for murder. He did not intend to kill (or cause serious harm) to the Deceased. Rather, he intended to engage in consensual sadomasochistic sexual activity, with no intention that the same would result in either death or serious harm. The fact that death occurred was as a result of a tragic accident that neither party intended. In this context, consent is the factual basis for this defence, but nothing more.

No defendant should be debarred from running this argument. This is for the simple reason that it could be factually true. And if it is, then they absolutely should be acquitted (of murder). In my opinion, that is the beginning and end of the analysis. We do not debar defendants from running arguments just because they are difficult to disprove or because others may find those arguments distressing.

And, as the tragic case of Grace Millane demonstrates, it appears that juries are perfectly capable of assessing such arguments and deciding whether or not they are true or false.

A far too nuanced comment for LC

Quite honestly, 100% agreed with every word said.

Just one correction: Please don’t say ‘She’ when describing a victim and ‘He’ when describing a Defendant. Men are also capable of being victims here, and women defendants, and generalising it as anything else does not really help the overall discussion on sexual offences, and related matters.

Anon

This is a good article – most of the mainstream media appear to think what we are discussing here is some kind of defence to a rape charge: quite a baffling misunderstanding.

The reality is that I don’t really see that this does anything other than codify Brown (and its line of cases), it was fairly clear from them that consent for sexual gratification does not vitiate a charge of GBH or wounding (and similar cases at the ABH level of harm have held likewise). The fact that a few cases have been able to skirt around the fringes of that principle is just a feature of common law and each case is determined on its own facts (as others have said, it goes to (a) the level of harm caused, and (b) mens rea, rather than being a straight up “defence”).

As much as it’s great that domestic abuse is firmly on the legislative agenda people really need to stop hailing this as the legal game-changer it isn’t.

Neo-puritan

Why don’t we just ban sex altogether? That way all these messy issues won’t come up at all

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