The 6th July 2020 saw MPs vote in favour of a new clause in the most recent Domestic Abuse Bill, welcoming a ban of the ‘rough sex defence’. Put simply, the defence allows a defendant to claim that a victim of a violent act consented to the act in the pursuit of sexual gratification, which can lead to a reduced sentence. According to campaign group “We Can’t Consent to This”, the use of the defence has seen a spike in recent years, with the notorious 2018 Natalie Connolly case being a shocking example of what the defence has allowed some perpetrators to get away with. The defence is a problem for many reasons, and it is clear that this clause is a step in the right direction.
The first problem with the defence is obvious. It is dangerous to suggest that a victim of a violent crime could have “consented” to it. This extreme form of victim-blaming absolves the perpetrator of responsibility and puts the onus on the victim (which in the vast majority of cases is a woman) to ensure she is not killed during a sexual act. Women have struggled to find justice in rape cases for years due to this same victim-blaming mentality. This defence takes the problem to a whole new level, requiring women to prove that they did not, in fact, consent to being killed. The defence is therefore dangerous, providing an easy loophole for domestic abusers to lessen their sentences when faced with homicide charges, and reducing the protection victims receive from the law.
Secondly, the defence is inherently biased towards the perpetrator. It is very easy to shift the blame onto a dead person who cannot argue back. By presenting a case of “rough sex gone wrong”, the perpetrator is able to interact with the jury, framing themselves as just as much a victim of the act as the dead woman he left behind. In contrast, the real victim, who is now dead, is not there to offer her side of the story. This leaves the jury with a biased image of a violent sexual act that allows them to sympathise more with the defendant. In addition, the victim is unable to defend her privacy against the media who are free to broadcast personal information about her sexual activities. This means that not only do the family and friends of the victim have to deal with the tragic loss, they must also face the media insensitively publicising private information about her without her consent. This is a devastating and disrespectful blow to a grieving family, as well as the victim herself.
But surely, some may argue, in some cases it truly was a tragic accident? In which case it would be wrong to remove the defence from a grief-stricken defendant already dealing with the fact that they accidentally killed someone they loved. This could certainly be the case in some instances, but data suggests that it is unlikely. Research for BBC Radio 5 found that “more than a third of UK women under the age of 40 have experienced unwanted slapping, choking, gagging or spitting during consensual sex”. This is a worrying statistic which indicates that women’s consent is frequently disrespected during sex, and only increases the need for a ban on such a dangerous defence. However, even in cases where it was a tragic accident, the “rough sex” defence is not the solution. Following R v Brown 1993, UK case law explicitly ruled out the possibility of consent being a valid defence against charges of assault. This means that the “rough sex” defence is not supported by law and should never have existed. It only works because it is an undesired loophole; it targets the jury, as they are less well-versed in the law than a judge, influencing them to agree to a lesser charge. Therefore, this ban only serves to reinforce what case law has already forbidden, strengthening the law as opposed to changing it. Instead of relying on this defence, defendants should focus on the fact that they may not have had the mens rea for murder, possibly reducing their conviction to manslaughter.
To conclude, the “rough sex” defence ban is a promising clause that increases protection for some of society’s most vulnerable people. The need for such a ban comes in the wake of a growing trend of increased sadomasochistic activities in the bedroom, perhaps following films like “Fifty Shades of Grey” and the more recent “365 Days”, which has normalised sexual violence and increased the pressure on vulnerable women to take part in activities they do not wish to do. It is therefore more important now than ever for these women to know that the law is on their side, and not on the side of the defendant who decided to take things a step too far.
Natalia Rodriguez
2nd Year Law (LLB)
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