Written by Shannon O’Connor
The passage of the new domestic abuse bill through parliament has been slow. It has now finally managed to make it to the committee stage, with a socially distanced meeting taking place on 4 June 2020 to discuss it.
MPs are hoping to use the bill to ban the ‘rough sex’ defence to murder. This is when a defendant kills a woman by strangulation or penetration with an object causing severe internal bleeding. He admits that he did it and that his actions caused her death but states she consented to it as part of a sex game, so it is not murder.
As a matter of law, there is no such thing as this defence. The case law is clear: you cannot ‘consent’ to serious violence being inflicted upon you.
Many people will remember reading the case of R v Brown  1 AC 212,  2 All ER 75 as a law student. This case involved a group of sado-masochistic men who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the purposes of sexual pleasure. The appellants were tried on charges of assault occasioning actual bodily harm and unlawful wounding. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. They appealed against their convictions, and the case reached the House of Lords where the convictions were upheld. It was held that consensual sado-masochistic acts which occasioned actual bodily harm to the victim were assaults, notwithstanding the victim’s consent to the acts inflicted on him.
However, claims of consent to violence against women can result in a lesser charge being brought, or no prosecution at all1. Where the violence is so extreme it results in the victim’s death, perpetrators can use a victim’s purported consent to the acts of violence to argue they did not have the necessary mens rea for murder. There are two points to be made here. Firstly, it is of course relatively easy to say someone consented if they are dead and cannot contradict that assertion. Secondly, even if someone has given their consent, it should not follow that the person committing the act did not therefore have the intention to cause them really serious harm. Consent and intention are not mutually exclusive.
A notable example of this so-called ‘rough sex’ defence in recent times is the case of Natalie Connolly. She died of vaginal arterial bleeding and suffered 40 separate injuries including serious internal trauma, a fractured eye socket, and facial wounds. Her partner, John Broadhurst, claimed it was a result of sex games “gone wrong”.
Broadhurst was initially charged with murder but later admitted manslaughter by gross negligence. He was sentenced in 2018 to three years and eight months imprisonment2. This was referred to the Attorney General’s office under the unduly lenient sentence scheme. However, the office said the sentence would not be referred to the Court of Appeal, as it fell within the available range.
At the second reading of the domestic abuse bill on 28 April 2020, MPs Harriet Harman and Mark Garnier discussed their proposed amendments. They want the bill to include statutory provisions to ensure this so-called ‘rough sex’ defence is not used to enable offenders to escape a murder charge or conviction. The proposed amendments also include ensuring that any potential dropping of the charge by the CPS needs to be checked by the Director of Public Prosecutions. They also want the bill to stop post-mortem abuse where the victim’s name is effectively dragged through the mud by asserting her sexual proclivities in open court, potentially through the issuance of reporting restrictions.
The Justice Secretary, Robert Buckland, stated in response to the proposed amendments that this is a complex area of criminal law, but the Government’s approach would be set out before the report stage, on 25 June 20203.