By Jessica Sutton.
After 18 months of hard work, the UK Domestic Abuse Bill will prohibit defendants from claiming that a victim was killed when “rough sex went wrong”.
The Bill says that arguing the victim “consented to the infliction of serious harm for the purposes of obtaining sexual gratification” shall be no defence to charges of grievous bodily harm, wounding, or actual bodily harm. Exemplary work by the organisation We Can’t Consent to This, and various politicians and lobbyists, has led to a clause which will have real impacts for cases of violence against women. The Bill will become law later this year, with a three-year pilot following this. In the UK, at least, violent men will no longer be able to claim that the alleged consent of a dead murdered woman renders their actions excusable.
In the aftermath of the controversial use of the rough sex defence in the trial of Grace Millane’s murderer, the question remains whether New Zealand should follow suit, and prohibit use of a defence which blames women for male violence.
What’s wrong with the rough sex defence?
The ‘rough sex’ defence is a misnomer. Consensual rough sex between two respectful partners cannot explain the traumatic and extreme violence inflicted on women in these cases. The only explanation is wilful cruelty, misogyny, and depraved sexual gratification from female submission and suffering.
Consensual, respectful sex, will not result in fatal internal injuries, as Janet Willoughby’s death did. It will not involve an extended strangulation, as Laura Huteson’s death did. It will not involve forced injections of anaesthetic, as Carole Califano’s death did. It will not involve violent beating, knife wounds, and bleach burns, as Natalie Connolly’s death did. Each of the men responsible for the above deaths claimed the female victim died during rough sex. Each received a reduced sentence.
This defence asks us to believe the ludicrous assertion that the line between consensual rough sex and a person dying, is an extremely fine one. If this were the case, then logically at least some of the cases in which people have been injured or killed during rough sex, would involve female perpetrators. However, 100% of those who have claimed the “sex gone wrong” defence in the UK have been men. The only reasonable interpretation is that the rough sex defence is a means for men to conceal intentional killings of women, whether out of sexual pleasure, out of a desire for ‘ultimate’ male dominance, or out of plain misogyny.
Not only does this defence normalise extreme violence against women during sex, but it paints the women as to blame for their own injuries or death. Globally, more and more women are experiencing unwanted violence during sex. Presenting female victims as consenting to violence, and therefore sexually deviant, is another means to paint women as unworthy of jury sympathy, and to prevent men being held accountable. Yet, consent has never been a defence to serious injury or death. Just because the victim is a woman, and the injury or death has happened in a sexual context, the law should not refuse to help her, nor to give justice to her family.
Use of the rough sex defence has increased by 90% in the last ten years, with a near 50% success rate. The archetype is typically an older man killing a younger woman, often when they have met for a first date. Grace Millane and her murderer fell into this archetype. So too did Hannah Pearson, who was 16 when strangled by a 24-year-old man she had just met, so too did Chloe Miazek, who was 20 when strangled by a 32-year-old man she had just met. However, in the case of Ms Miazek’s and Ms Pearson’s killers, the rough sex defence was successful. Both killers were cleared of murder. Ms Pearson’s killer was sentenced to 12 years in prison. Ms Miazek’s killer received only six years in prison, after the defence alleged Ms Miazek had previously displayed interest in erotic asphyxiation.
The majority of these ‘rough sex’ deaths have been the result of strangulation. Strangulation is a stand-alone offence in New Zealand, Australia, Canada and certain US States, as it so often is a precursor to femicide. A man strangles a woman to show her that he has the ability to kill her, and that she should fear provoking his anger in the future. New Zealand Police recorded 33 strangulations per week in the period of 3 December 2018 – 28 February 2019. Multiple countries have made clear that strangulation is an extremely serious offence. Yet, when placed in a sexual context, a female strangulation victim can easily be represented as promiscuous, depraved, and responsible for her own death.
Should the defence be prohibited in New Zealand?
If women are to be treated as human beings, worthy of life and respect, the rough sex defence must go. Defence lawyers in the Grace Millane murder trial attempted to argue a young woman’s interest in BDSM meant she was more likely to have consented to the strangulation that ended her life. Although responded to negatively by certain commentators, legally, the murderer’s lawyers were entirely entitled to take this line of defence. Whether this approach should be open to the defence, however, is a different question. Scott Beard, the Detective Inspector overseeing the Grace Millane case, voiced support for the defence being removed.
Certain members of the legal profession, and the usual minority of “concerned” men, argue otherwise. The defendant has a right to give an effective defence in court. Some will claim that prohibiting the rough sex defence is unfair to the men who grievously injure or murder women in this way. That removing such a defence is eroding the right to a fair trial. These boys have potential. They made a mistake. She wanted it.
Nevertheless, particularly in light of New Zealand’s horrific rates of violence against women, the rough sex defence is not justifiable. The defence rests on similar rhetoric to the excuses made in rape trials, that she asked for it, that she should have worn a different dress, that men can’t control themselves. However, in a femicide case where the rough sex defence is used, the woman can’t tell her side of the story. Her voice has been silenced. She cannot defend herself. She cannot control the narrative created by the man who ended her life.
In the end, there is a simple response to those “well-intentioned” men who fear they may be disadvantaged by the removal of such a defence. Treat your sexual partners with respect. Care about their well-being, rather than your own sexual gratification. Because if she is harmed by your actions, the only person responsible for that, is you.