What is the ‘rough sex’ defence, and is it actually being banned?
The Domestic Abuse Bill 2020 is a landmark piece of legislation designed to protect both victims of domestic offences and those susceptible to such abuse, making it easier to bring perpetrators to justice. This blog focuses on one aspect of it, namely the purported abolition of the ‘rough sex defence’. It is not a commentary on the entire Bill.
The tragic death of Natalie Connolly and the murder of Grace Millane share the unfortunate theme that the perpetrator claimed it happened as part of ‘rough sex gone wrong’, although Ms Millane’s murderer had his trial in New Zealand. Both cases caused controversy and it appears the government is taking the opportunity to address this with new legislation.
Last month, Justice Minister Alex Chalk MP (a criminal barrister, no less) said it was "unconscionable" that the 'rough sex' defence can be used in court to justify or excuse the death of a woman "simply because she consented". Mr Chalk said it would be made "crystal clear" in the proposed legislation that it was not acceptable.
Joan Smith, welcoming this in the Telegraph this month remarked:-
“The new clause bans the ‘consent for sexual gratification’ as a defence for causing serious harm murder in England and Wales, putting an end to a new version of the ‘she asked for it’ ploy familiar from rape trials”.
This has also been referred to as “The Fifty Shades of Grey” defence. The problem with such popular parlance is that it implies that there is currently a legal defence of ‘consent’ to a murder. Of course, there is not. It is also implied that there is currently a legal defence of ‘consent’ to causing a person serious harm. Again, there is no such defence of consent.
A defendant cannot successfully argue that it was lawful to kill their partner during sex because she consented to it. Natalie Connolly’s killer admitted manslaughter. Ultimately, the Prosecution decided to accept this plea - halfway through his murder trial. That decision may require an explanation, but it should not be confused with a need to change the law.
Causing serious harm for sexual gratification, even with the consent of the victim is not lawful either. This was tested in a House of Lords decision about sadomasochistic activity in R v Brown  1 AC 212. This case (which anyone who has studied law will be familiar) concerned a group of sado-masochists who participated in consensual acts of violence against each other for sexual gratification. The House of Lords [now the Supreme Court] found by 3-2 that although a prosecutor had to prove lack of consent in order to secure a conviction for an assault with no injury, it was not in the public interest that a person should wound or cause actual bodily harm or grievous bodily harm to another for no good reason. Furthermore, they found that satisfying sado-masochistic desires was not such a good reason.
The reality is that murder or serious assault defendants are not raising rough sex as a legal ‘defence’. There is no ‘defence’ to ban. What is usually boils down to is a defendant trying to explain their partner’s injuries by saying it happened during activity which was sexual in nature. Such defendants usually claim it was either sado-masochistic, or there was an accident.
In other words, there is never a Prosecutor in England or Wales confounded by some unfair provision of law which allows this as a ‘defence’. Typically, the Prosecutor will simply contend that the defendant’s account is untrue, and that the victim’s injuries were caused during a violent or sustained assault that had absolutely nothing sexual about it. In this way, the key trial issues are factual, not legal. Therefore, for the government to be purporting to change the law to stop the ‘rough sex defence’ is misleading.
In this way, there is no such thing as a ‘rough sex defence’, there are those only who try to explain the physical and medical evidence by claiming it resulted from sexual activity. The Domestic Abuse Bill 2020 does not prevent them from continuing to do this. Nor should it, because sooner or later that would prevent an innocent person from telling the truth in their own defence.
To underline that is a factual issue not a legal one, the Press Officer for campaign group “We Can’t Consent to This” readily states:
“Whilst every defendant has a right to give their side of the story, they don’t have a right to be automatically believed. And right now, they are being believed far too often”
The fact that a defendant is found ‘not guilty’ does not necessarily mean that he was believed. It simply means the jury were not sure that he was guilty. The same applies to those cases that are not prosecuted. It does not necessarily mean the prosecutor ‘believed’ the suspect.
Could parts of the defence case be barred from publication?
Of course, trials in violence or sex cases can be horrendous. Victims and their families and friends are mortified to hear unfounded claims about the victim’s sex life and preferences. It is often said that this feels like undergoing the whole ordeal again. One way of dealing with it might be to prevent publication of certain aspects of the defence case. Of course, publication of the complainant’s name is already prevented in sex cases, regardless of the verdict. However, perhaps there might be scope for the trial judge to prevent publication of certain details of the defendant’s case. This might particularly be justifiable if he was convicted, i.e. if the jury rejected his claims about sexual activity and the judge felt they were particularly offensive or unfeasible. Is it really necessary that such claims should be allowed in the public domain?
Could humiliation of the victim be an aggravating feature?
Another way of combating improperly brought defence cases is to treat raising a humiliating defence during trial as an aggravating feature upon conviction. The list of aggravating features within the assault sentencing guidelines does not presently include reference to the nature of the defence raised.
Of course, defendants who are convicted after trial already receive a greater punishment in that they lose credit (sentence discount) for not pleading guilty early. On one level, lawyers might feel that to make the nature of the defence case an aggravating feature might be a double-whammy, or might inhibit a truthful person from raising their defence at all, for fear of a longer sentence. However, there is a precedent for this in terms of fraud cases. In fraud cases, it is considered an aggravating feature to “Wrongly place blame on others”.
In this way, the very nature of the defence case is accepted as a potentially aggravating feature. In other words, the court is saying to a convicted defendant “You knew you were guilty all along, and yet you tried to drag innocent people’s names through the mud as a way of escaping liability”. This is analogous to what a guilty defendant is doing when, having viciously assaulted his girlfriend, he then claims in a public courtroom that it was all part of her kinky sex preference.
As ever, it is the job of the investigator and the prosecutor to present the case to the jury so as to make them sure of the defendant’s guilt. This presents a real challenge. Far too often, the difficulty in meeting that challenge is conflated with a perceived need to ‘change the criminal law’. The UK government purporting to repeal a ‘rough sex defence’ that doesn’t even exist is just another example of this.
If you are being investigated or prosecuted for an allegation of sexual assault, click here to find out how Brett Wilson LLP's specialist criminal litigation solicitors can assist you.
Articles are intended as an introduction to the topic and do not constitute legal advice.