*Trigger Warning: Rape and sexual assault content*
Following the international outcry sparked by the death of British backpacker Grace Millane, the Domestic Abuse Bill 2020 intended to terminate the use of the ‘rough sex defence’ in cases of sexual and domestic violence. Although it has been widely received as a necessary step forward, it must be scrutinised to see whether this goes further enough to challenge the increasing trend of sadomasochistic violence towards women.
Also referred to as the ‘Fifty Shades of Grey defence,’ the rough sex defence is used by defendants to supposedly justify injuries of a victim by means of sexual gratification, or put simpler, a neighbouring echo to the ‘she asked for it’ ploy heard in trials of rape and sexual assault. This term became well known, following the death of Grace Millane, a twenty-year-old travelling in Auckland whose untimely death was explained by these means. Grace went on a blind date and was later strangled to death in a hotel room. Post-mortem examinations concluded that she was strangled for five to ten minutes, before her body was found in a suitcase eight days later.
Another high profile case was that of Natalie Connoly in 2016: the 26-year-old mother was killed by her boyfriend and left to bleed to death in their home in Stourbridge. Her post-mortem concluded she had forty separate injuries, including a fractured eye socket, facial wounds and serious internal trauma. While in both cases the defendants were prosecuted, it is widely accepted that in addition to the problematic legalities of consent and the absence of victims, the men were given a lighter or lesser sentence (charges of murder being reduced to manslaughter, for example) with this rising trend being regarded as male justification for homicide.
This bill is currently in its report stage awaiting scrutiny from the Lords before it can enter the statute book. However, it is important to recognise – beyond the tragic cases like those mentioned – why this bill is not a conclusive step to prevent the circulation of this dialogue. Firstly, the problem with such language is that it implies there is such a thing as legal defence of a ‘consent’ to murder, which of course there is not. People may view this problem as a very specific area of the widespread sexual violence that already takes place in the UK. This communicates the extent of this problem. According to the ‘We can’t consent to this’ campaign research, there have been 60 cases of ‘sex games gone wrong’ since 1972 with 45% being charged for manslaughter or the death of the victim is considered not suspicious at all (with 59 women killed so far). Additionally, there has been a 90% increase in such cases within the last decade. [1]
With the number of cases beginning to rise, this raises questions not only regarding the male perception of sexual consent, but also the question of whether the law is enough to shift this alone, or whether a societal shift that extends beyond common law is needed. While one could argue that this law would delve into people’s private lives and sexual relationships – there is a significant difference between choosing to recreate something seen in porn and trying to kill someone. Furthermore, it should not be normalised that women’s sex lives are discussed in a court room without their consent, and then in turn discussed further by the press – when they do not have the opportunity to defend themselves.
Ultimately, it is overdue that the law has ignored this false pretence of a ‘rough sex defence,’ which has legitimised people trying to justify medical or physical evidence by explaining it as sexual activity and that ‘she was asking for it.’ Such a delay in their response has already cost the lives of too many women. Until the law is clear that you cannot ‘consent’ to serious injury or death, the government is turning a blind eye to many women who have already had their lives cut unfairly short.
[1] Data available at wecantconsenttothis.uk