Consent and the ‘Rough Sex’ Defence in Rape, Murder, Manslaughter and Gross Negligence

Abstract

When women die at the hands of men, a not infrequent defence is that she consented to, or initiated, the beating, strangulation and penetration which contributed to her death. While strangulation has been a typical method of killing in male on female intimate partner homicide 1 for many decades (‘thou little recognised), what has changed is men’s excuses for their violence. Excuses such as ‘She made me lose my self-control in an argument’ or ‘She was unfaithful to me’ are being supplanted by ‘She consented to rough sex’. 2 Since the dead cannot speak, nor is there any property in the dead, the defendant’s tactic of impugning the deceased’s character cannot be easily rebutted, and he, while maligning her in this way, may profit from a lighter sentence. Law reformers, politicians, academics and activists 3 are pressing for legal reform to shut down this misogyny. On 16 June 2020, during the Public Committee stage of the Domestic Abuse Bill, 4 cls 4 and 5 were approved. Clause 4, ‘No defence for consent to death’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury. (2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter’. Clause 5, ‘No defence for consent to injury’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation. (2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter’. These two new clauses would prevent the alleged consent of the victim from being used as a defence to a prosecution in intimate partner homicides and non-fatal assault which result in s 47 assault occasioning actual bodily harm, Offences Against the Person Act 1861, or more serious injury. Additional new clauses including, proposing that consent of the Director of Public Prosecutions would be required, in the case of death, to accept a charge to anything less than murder (cl 6); the requirement to consult with the family of the deceased regarding charges (cl 7); the prohibition of reference to sexual history of the deceased in domestic homicide trials (cl 10); anonymity of victims of domestic homicide (cl 11); and anonymity of domestic violence survivors (cl 14); the Parliamentary Under-Secretary of State for Justice (Alex Chalk), while sympathetic, said there were difficulties with the clauses in their present form. 5 Of the proposal to make non-fatal strangulation 6 (cl 8) a standalone offence, he considered that ‘creating a new offence could limit the circumstances covered, and create additional evidential burdens’. 7 These motions reflect the several debates since October 2019, when MPs, Harriet Harman and Mark Garnier, introduced the ‘No defence for consent’ amendment to the second reading of the Domestic Abuse Bill. 8 Since men also plead the ‘sexual consent defence’ on ‘first dates’, which may fall outside the definition of ‘domestic abuse’ as set out in the Bill, 9 a loophole also recognised by Alex Chalk at the Public Committee stage, 16 June 2020, this too will be addressed. 10 The murder of Grace Millane, in New Zealand 11 in 2018, murdered on a ‘first date’ provides such an example.