The New Domestic Abuse Bill And The ‘Rough Sex’ Defence

On the 4th March 2020, the enhanced Domestic Abuse bill was introduced to Parliament for its first reading in the House of Commons. Along with promises to ‘further support and protect victims’ and ‘punish perpetrators,’ the bill also states that the UK government has launched a review into the ‘rough sex’ defence.

This review comes amid public pressure from groups such as  We Can’t Consent To This, and MP Harriet Harman, who claim there has been a worrying increase of the ‘rough sex’ defence in the last 10 years.

Home Secretary Priti Patel has hailed the bill as: “A monumental step to empower victims and survivors, provide protection and tackle perpetrators at the earliest stage”. However, campaign groups call for further action to ban of the ‘rough sex’ defence in order to bring an end to the normalisation of sexual violence against women.

Campaigners are rallying for two amendments to the bill. The first is that murder charges are brought against perpetrators suspected of killing a person during sex, rather than manslaughter charges. The second is to write into the bill that consent is not a defence for actual bodily harm (ABH).

What is the ‘rough sex’ defence?

The ‘rough sex’ defence, otherwise known as the ‘50 Shades of Gray’ defence is an excuse used in sexual violence court cases, where significant harm or death has been brought upon an individual (usually a woman). This defence was first used in the 1972 trial of Carole Califano’s killer, Peter Drinkwater.

Many have likened this defence to the ‘nagging and shagging defence’. Speaking to The Independent, Louise Perry, Campaigner and Co-runner of We Can’t Consent To This explained that there are strong parallels. In these defence cases, juries were told that the defendant’s violent behaviour was justified due to the actions of the victim. These actions included ‘nagging’ and ‘decreased sexual activity’ in the relationship.

The ‘nagging and shagging’ defence that Perry refers to was only banned in 2010.

Another shocking defence that has prevented victims from seeing justice is the ‘big penis defence’. In 2017, Florida man Richard Patterson successfully used this defence as an explanation into why his girlfriend choked to death. He escaped a charge of murder in the second-degree after being found not guilty of her death.

What is causing the spike in the ‘rough sex’ defence?

In November 2019 alone, the rough sex defence was used 5 times in homicides and assaults against women, with the perpetrators claiming the women ‘consented’.

It has been found that the perpetrators of 59 women’s deaths have used this defence. Out of the 18 cases that made it to trial, 9 resulted in no conviction or reduced sentences. A reduced sentence usually means manslaughter due to gross negligence, essentially absolving the perpetrator of intent and arguably, guilt. Shockingly, these statistics come from the last 5 years.

Another horrifying statistic revealed by The Guardian, shows that since 2010, those using the ‘rough sex’ defence has increased by 90%.

Most recently, the Grace Milane case caused ripples of outrage across the world.The 22-year-old British backpacker was murdered in Auckland, New Zealand on 8 December 2019. Her killer had claimed she died in a ‘sex game gone wrong’. After her death, he researched how to dispose of her body, watched hardcore porn, took photos of her genitals, and then stuffed her body into a suitcase and buried her. He later used cleaning products to rid any trace of her blood from his hotel room carpet. He was charged with murder.

However, there are countless women whose killers have not seen the same hand of justice. On 23 July 2016, 16-year-old Hannah Pearson was killed by her boyfriend’s friend James Morton.  She had met him earlier that day, and later went to his house where she was given alcohol. Mr Morton said he then put her in his bed. She then allegedly made sexual advances upon him, and he strangled her to death. She did not consent to this. James Morton received a manslaughter sentence and will serve a maximum of 12 years.

Natalie Connolly, was pronounced dead on 18 December 2016. Her boyfriend, multi-millionaire John Broadhurst, had inflicted 40 separate injuries upon her. This included a fractured eye socket, internal trauma, and blunt force injuries to her head, buttocks and breasts. Mr Broadhurst had then sprayed her face with bleach. The morning after, he left her lifeless body at the bottom of the stairs, had breakfast and cleaned his car, before ringing 999 telling paramedics she was as ‘dead as a doughnut’. He was charged with manslaughter by gross negligence, and is now serving a 3 year and 8 month sentence.

Other women subjected to the same devastating fate include, Charlotte Teeling, Anna Florence Reed, Sally Cavender, Denise Rosser, Megan Bills, Chloe Miazek, and many, many more.

But, what is causing the spike in men using the ‘rough sex’ defence? Well, a number of explanations have been put forward. Campaigner Louise Perry has suggested that more ‘liberal attitudes’ in the bedroom have in part contributed to the increased use of the defence. Other groups such as The Centre for Women’s Justice have said that the figures reflect a: “Growing pressure on young women to consent to violent, dangerous and demeaning acts”. Further to this, speaking to the BBC the charity said that this was: “Likely to be due to the normalisation of extreme pornography”. However, no definitive reason has been found.

The relentless efforts and popularisation of the Me Too movement has exposed countless horrific acts of sexual violence committed by men against women. One would hope that this exposure had led to transformed perceptions, and changed behaviour in the way that men treat women. Unfortunately, this is not the case. The glamorisation and normalisation of sexual violence against women is thriving.

A 2019 study by the BBC, for example, brought forward appalling statistics. The study found that over a third of women in the UK, below the age of 40 have been subjected to unwanted choking, gagging, slapping or spitting during sex.

Will any changes actually be made?

The Domestic Abuse Bill was initially delayed back in November 2019, when parliament was prorogued. However when asked his opinion on the ‘rough sex’ defence, PM Boris Johnson said: “I agree with Harriet Harman that the ‘50 shades defence’ is unacceptable and we’ll make sure the law is clear on this.’

Many others have welcomed the bill and the review too. Adina Clair, Acting Co-CEO of Women’s Aid said: “With the number of women killed by men at a fourteen-year high, the return of the Domestic Abuse Bill to parliament is welcome.”

Kate Ghose also of Women’s Aid added: “Time and time again, we hear of cases where a woman has been killed by a man as an “isolated incident”; yet the latest Femicide Census report shows yet again that this is not the case.”

However, amendments to the bill are being resisted by those such as Caroline Goodwin QC, Chairwoman of the Criminal Bar Association. She dubbed the proposed legislation as ‘kneejerk’, adding that such a response leads only to the creation of ‘bad, unworkable laws’.

Others such as Dr Samantha Pegg, Lecturer at Nottingham Law School said that these changes: “Won’t stop people making these claims’. Dr Pegg went on to say that the surge in claims has potentially been caused by a ‘shift in culture’ where the defendant thinks that the jury will believe them.

Likewise Rosina Cottage QC, Barrister at Red Lion Chambers, said: “The changes will not affect the ability of a defendant to run a defence of lack of intent to murder and nor will they assist those campaigning for the protection of people from sexual violence.”

So, will any real change be brought into effect if the ‘rough sex’ defence is banned? Well, it may surprise you, but the ‘rough sex’ defence is in fact already prohibited by common law.

In the sentencing of Mr Broadhurst, Mr Justice Julian Knowles acknowledged this by stating: “The authorities are clear that a person cannot in law consent to being subjected to actual bodily harm or grievous bodily harm for the purposes of sexual pleasure…”.

Phoebe Arslanagic-Wakefield, Researcher at Bright Blue stated that as a result: “Putting it into statute as activists have pushed for would be a purely cosmetic change in law and not actually have any impact on the outcome of cases like Broadhurst.”

So, what is required to change the outcome of such cases? MP Harriet Harman and MP Mark Garnier have suggested that these kinds of homicides should be deemed domestic homicides and that any situation involving sexual domination, including strangulation should be viewed as ‘serious assault’.

However it is obvious that a serious, fundemental change in attitude and treatment towards women is needed to end the threat of sexual violence against women. In addition to this, the outrageous and grotesque victim-blaming of women within these cases should no longer be permissible. Organisations like Rape Crisis UK England and Wales are working tirelessly to create a world without rape and sexual violence. For now, we must continue campaigning, remain hopeful that real change will happen, and not let these women’s voices go unheard.