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20 Jul 20

Dr J. Rogers


“Abolition” of the “Rough Sex” Defence: Hurried Legislation and Missed Opportunities


Dr Jonathan Rogers (CLRNN Co-Director)


Quick summary – I share some of the concerns of We Can’t Consent to This, but I do not think that clause 65 of the Domestic Abuse Bill will meet their objectives. I propose two other reforms instead.


Introduction to clause 65 of the Domestic Abuse Bill


On the website of the campaign group We Can’t Consent To This is an account of 59 women killed in sex games gone wrong, where the killer claimed that the deceased had been an enthusiastic participant. There are seven male victims too; all died by the acts of another man. In the UK, every known killer during sex games is a man. Many of them were likely murderers who invented any notion of a consensual sexual encounter, let alone of a sex game that went wrong.


The group also says that it knows of 115 living victims who have had to deny in court that they consented to acts including


'waterboarding, wounding, electrocution, strangulation and asphyxiation, slapping, beating, punching and kicking, and, in one case, a shotgun fired intimately at a woman'


all of whom but one was a woman.


This is grisly but valuable research, and we should all be pleased that it has come to public attention.


The main concern for the group is the extent to which the matter of consent is raised in murder trials, the so-called ‘rough sex defence’. But what does this mean? “Rough sex” has never been a defence to murder. A jury might well hear evidence of consent in such cases, but it does not mean that consent is an answer to the charge in itself. It is not. The legal issue is instead whether the defendant had intended to kill or cause serious harm. But hearing evidence of consent might help to persuade a jury to accept a defendant’s denial that he had such intent, in which case he can only be convicted of manslaughter.


So instead, legal attention has shifted to whether consent might be a defence “in itself” to lesser charges, say of causing serious bodily harm, if done for sexual pleasure. Criminal lawyers will know that the House of Lords decided in R v Brown that a person cannot give legally effective consent to injury inflicted to satisfy sado-masochistic desires. But this was a narrow decision and the cause of some dissatisfaction. We Can’t Consent To This suggest that Brown is not faithfully applied in all Crown Courts.


When Ms Harriet Harman MP presented a range of reforms to be put to the vote during the passing of the Domestic Abuse Bill, the government moved quickly to find a reasonable compromise that would avoid any difficult votes. The upshot is that the ruling in R v Brown is now likely to be confirmed in statute. The Bill has completed its stages in the House of Commons, and so unless the House of Lords brings its own independent scrutiny to this clause, it is likely to pass.


The relevant part is clause 65 of the Domestic Abuse Bill. This is the text:


65 Consent to serious harm for sexual gratification not a defence


(1) This section applies for the purposes of determining whether a person (“D”) who inflicts serious harm on another person (“V”) is guilty of a relevant offence.

(2) It is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification (but see subsection (4)).

(3) In this section—“relevant offence” means an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861 (“the 1861 Act”);“serious harm” means—

    (a) grievous bodily harm, within the meaning of section 18 of the1861 Act,

    (b) wounding, within the meaning of that section, or

    (c) actual bodily harm, within the meaning of section 47 of the 1861Act.

(4) Subsection (2) does not apply in the case of an offence under section 20 or 47 of the 1861 Act where—

    (a) the serious harm consists of, or is a result of, the infection of V with a sexually transmitted infection in the course of sexual activity, and

    (b) V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection.

(5)  For the purposes of this section it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for D, V or some other person.

(6) Nothing in this section affects any enactment or rule of law relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence.


Although it is possible to make various comments on the clarity of the drafting, it seems safe to assume that the courts will decide that it is meant to ensure the consistent application of Brown and to do nothing else. Indeed, in the words of Home Office Minister Victoria Atkins


We've been clear that there is no such defence to serious harm which results from rough sex. But there is a perception that such a defence exists and that it is being used by men, and it is mostly men in these types of cases, to "avoid convictions for serious offences or to receive a reduction in any sentence where they are convicted."


Now, does it matter that the government did not consult at all widely about clause 65 but rather hurried to implement it? My answer is yes, and not only because the true aims of We Can’t Consent To This will not be realised, but also because valuable chances to make real improvements have been squandered. Let us get there with a Questions and Answers session:


Question 1:     Will the clause mean that defendants will no longer be heard to say that the complainant consented to serious harm?


This is the main aim of the group, not only in law but also, preferably, even in testimony at trial. Families of the deceased are naturally repulsed at hearing how their daughter or sister died without also hearing spurious testimony by the defendant to how she welcomed the activities in question. No doubt, at first sight, clause 65 might satisfy both aims. But it does not. The clause will not have the desired effect at all.


Recall that a defendant charged with murder will seek to deny intention to kill. In doing so, he will give his own account of what he was doing at the time – that cannot be prevented – and he will likely testify to a consensual sex game because, if that is credited at all, it may be easier then to believe that the death was a tragic accident rather than a murder.


Now, here is the point – exactly the same can happen if the defendant is charged with causing serious bodily harm (if charged under s.18 Offences Against the Person Act 1861); or, if charged under s.20 Offences Against the Person Act 1861, if he seeks to deny that he foresaw any risk of injury. Again, his state of mind will be the focus of attention in legal terms. But he will claim that it is relevant to this to testify that he was playing a consensual sex game and thus had no intention or foresight to cause serious injury in the process; that the victim had encouraged him to do what he did, also not perceiving any risk of injury, and so on.


This is an important point to grasp. Clause 65 may confirm the current law that consent is no “defence” to such offences, but a denial of the offence – a claim that ‘I didn’t foresee causing such harm’ – still allows the same evidence to be heard, as relevant to his state of mind. Nothing in Clause 65 effects this, nor even purports to do so.


There is another problem! A defendant who must have intended to cause serious injury may prefer to plead guilty, say, to inflicting grievous bodily harm under s.18 Offence Against the Person Act 1861. But it will still be open to him to insist at the sentencing stage that the complainant had in fact consented, and so, whilst still guilty in law, he should not be sentenced as though he was a pure aggressor. The trial judge may then need to hear evidence, including from the complainant, to reach a decision on this highly material fact. Again, the assertion will be made, and the truth of it determined, in public.


Question 2:     Still, if the principle in Brown is good, why not at least consolidate its message in statute?


A fair question. It is always possible to argue that even if clause 65 makes little difference in practice, its endorsement in statute still carries intrinsic weight. It is a decision of Parliament, which takes into account the worrying gendered evidence which divides perpetrators and sufferers. It implicitly recognises that even women who do give agreement may be doing so because they felt pressure to satisfy male sexual demand and that this caused them to accept risks which they would much rather not have been asked to take.


But when legislation is passed, the picture nonetheless changes. Those who are adversely affected no longer have an opportunity to disagree; any hope that the Brown decision might be reversed, or refined for example regarding the scope of injuries covered by Brown, by a future Supreme Court, which hope previously they had, has now quite receded. So, to the extent that they have legitimate grounds for objection, they should be invited to express them, and Parliament should consider them before making its final decision.


Who might have legitimate grounds for objection? Certainly, not violent men who enjoy degrading women. But women who genuinely are curious to experience BDSM are affected.  In law, people who encourage such games could be regarded as accomplices to those injuries caused to them, and the legislation makes no exception for women (as it would need to do).


Moreover, clause 65 applies as much to women who beat men, and to sex workers. Some might be surprised that the female dominatrix who offers to whip or tread on male clients is equally affected. There is reason to believe that those who work as such do not feel in the slightest exploited, and in some cases they may feel empowered. The argument for criminalising their trade too has never been made out, but clause 65 confirms it in any event.


So, the case for confirming Brown was not all one way. If it had been understood that clause 65 does not prevent baseless assertions of women consenting to their own beatings, and is more likely to have an effect on the lives of others, such as the dominatrix, whom we might have little interest in punishing, it may well not have passed. But no proper consultation was attempted and no one in government appears to have sought plausible dissenting voices.


And the government did fully appreciate that not all of Ms Harman’s views can be described as mainstream. It seemingly did what it did to avoid a more divisive vote. Many of Ms Harman’s other original proposals were, in turn, quietly shelved. We turn to one such proposal now, which regrettably looks like a missed opportunity on all sides.


Question 3:     Was anything else proposed that should have found its way into clause 65?


Yes, if only there had been interest in adapting it. Ms Harman had proposed the following:


"Prohibition of reference to sexual history of the deceased in domestic homicide trials


If at a trial a person is charged with an offence of homicide in which domestic abuse was involved, then—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the deceased.”


Member’s explanatory statement: This new clause will prevent the victim’s previous sexual history being used as evidence to prove consent to violence in a domestic homicide case. This draws on the legislative measures in the Youth Justice and Criminal Evidence Act 1999 to prevent rape defendants raking up or inventing complainants’ previous sexual history.


At this point, we need to make a small digression and explain what is meant by the “legislative measures in the Youth Justice and Criminal Evidence Act 1999”, as referred to in the explanatory statement.


For many years, men who were charged with rape and who claimed that the complainant consented, would try to use as much material as they could about the complainant’s sexual behaviour and habits on other occasions, suggesting that they were relevant because a jury which heard that other evidence might be more inclined to believe his present account. Let us call this “other sexual behaviour” for now. This used to be quite freely admitted and was quite unnecessarily humiliating for many complainants.


So, in common with many jurisdictions, it was thought necessary to create “rape shield” legislation: ours is to be found in section 41 Youth Justice and Criminal Evidence Act 1999. It does not forbid the defendant from giving his version of what happened at the time of the event in question – that much must be allowed – but it does prevent him from giving evidence, or asking questions in court, about other sexual behaviour of the complainant, unless certain exceptions arise and where the judge accepts that he might not have a fair trial otherwise.


There are those who criticise judges in rape trials for allowing evidence of consensual encounters between the same parties. But the House of Lords has ruled that s.41 must be interpreted to allow this in cases where to do so is necessary to give defendants a fair trial. Most legal practitioners regard trial judges to have exercised their judgment sensibly under s.41 when such similar arguments are raised in rape trials. The Ministry of Justice started to consider reform to s.41 some time ago but clearly the prevailing consensus from practice has caused it to shelve any reforms.


But s.41 only applies where a person “is charged with sexual offence”, and the definition of “sexual offence” in section 62 of the Act quite clearly excludes charges under s.47, 20, and s.18 Offences Against the Person Act 1861. So, to exclude similar evidence from these trials as well, we would need to amend either s.41 or s.62 of the Youth Justice and Criminal Evidence Act 1999 so that it applies also to injuries alleged to have been caused for the purpose of sexual gratification of any person.


This is very much within the skill of a Parliamentary draftsman. The necessary amendment to either s.41 or s.62 Youth Justice and Criminal Evidence Act 1999 could easily have been included with clause 65 of the Domestic Abuse Bill. Its effect would have been that the defendant would not be able to refer to unsubstantiated claims of the complainant willingly undertaking BDSM activity with other people, or to make claims relating to purchases of sex toys, or visited websites, unless they were thought to be of critical importance to the defendant having a fair trial.


But in Ms Harman’s proposal (above), we see something quite different. There were no exceptions and no allowances for trial judges to allow evidence to be given in order to receive a fair trial.


Suppose that the defendant had, say, authentic video recorded activity of him and his partner gladly indulging in BDSM activity over several years, and wished to use them in order to insist that he was careful to minimise risks of injury and had drawn on the benefit of earlier experiences with the complainant. This would seem to be necessary if he were to get a fair trial on his assertion that he neither intended nor foresaw injury. But under Ms Harman's proposal, he could not give it, not even if the complainant were denying all such previous activity. To say that such a proposal “draws on” s.41 is hardly right - at least, not as s.41 is read today, after the House of Lords decision in 2001.


In the recent past Ms Harman proposed that the ban on other sexual behaviour in s.41 should be absolute and so in proposing the original clause 65, she stuck to her convictions. But insisting on this extreme view of what s.41 ought to say, and trying to smuggle it into clause 65, has proved to be damaging. At the end, we have no legislation on the matter at all. Admittedly I think that the government too should have tried to compromise. It could simply have extended the current (non-absolute) protection offered in s.41 to charges of violence too. Probably the explanation why they did not do so lies within the hurried nature of agreeing the clause and, again, the failure to consult more widely.


Question 4:     Might any other ideas have merited consideration?


I believe that the following idea might have appealed to all sides. It is this:


“Where a person (A) has died from injuries inflicted by another person (B) for the sake of sexual gratification by that other person (B), there shall be a presumption of fact that that person (A) had not consented to receiving those injuries, unless the contrary is proven”


Such a presumption would not be redundant by virtue of the rule in Brown that consent is not a defence in itself to receiving the injuries. Recall that defendants may still assert instead that they had not intended or foreseen the injuries; or they may assert the fact of the victim’s agreement as a powerful argument in mitigation in sentencing. In both these situations, there is still some use for the above presumption of non-consent.


So, where a man, charged with murder, argues that he had not actually intended to cause death or serious bodily harm, and refers to the victim’s consent to what he did, the jury will still focus on what his true state of mind was – but, the judge will add, they should not be quick to accept what they had heard about the victim’s consent and should only take account of it if they think it more likely than not to be true.


So, the direction may not be decisive. But it will highlight the general unlikelihood of that particular part of the man’s account. At the moment, even a suggestion of likely falsity would probably be regarded as improperly usurping the role of the jury. Further, if the man, convicted of manslaughter, sought to persuade the judge that it had only been a consensual sex game, the family of the deceased relatives might be assured to know that the judge will be required to consider the evidence from a starting point that the claim is untrue.


This is not a dramatic proposal, for three reasons.


For a start, it applies a presumption of non-consent only to fatal injuries. This assumes that – generally – most BDSM activities which did cause death were likely to have carried a high risk of death in their matter of operation, and so were unlikely to have been agreed to. I admit that I lack empirical evidence as to this, but if such evidence is altogether absent, then law makers might rely on common intuitions. Other presumptions of fact (e.g. that a person who vanished seven years ago is dead) rely on little more than that and have stood the test of time.


Second, it does not put the defendant in an unfair position. Since the presumption would be rebuttable, he may still seek to persuade the jury or judge that this was one of the unusual cases where the deceased victim had in fact agreed to the activity.


This need not be impossible for him. Forensic evidence might offer assistance, if his account is true. He might have offered a consistent account to the police soon after the incident. He might be able to call previous partners to BDSM activity to attest to his care to ensure consent. At the end we only demand that his account of non-consent should persuade the jury on the balance of probabilities. It is supposed to be suitably demanding, but not wholly unrealistic for he who tells the truth


Third, I believe that this presumption would be compatible with a defendant’s right to a fair trial under Article 6 (2) European Convention on Human Rights. The presumption of innocence here is not absolute. It matters that the prosecution first has to prove that the defendant did cause the death, and the act in question was done for the purpose of his sexual gratification. They would also still need to prove that he intended to cause death; and it is up to the defendant whether he adopts the tactic of asserting consent as part of his account which seeks to deny this. It matters that the presumption, as a starting point, surely accords with the likely first reaction of many people, and that the defendant, if telling the truth, still has a fair chance to rebut it.


It would be a legitimate legal mechanism of one of the basic messages of We Can’t Consent to this: that, in homicide trials at least, claims of consent to fatal injury by deceased women are likely to be untrue. Nothing in clause 65 is presently concerned with this message.


To summarise:


Clause 65 makes no difference to trials of men accused of beating or torturing women for sexual gratification. Even though not a “defence” as such, the purported consent of the complainant will still be asserted at trial as relevant to other issues. We should instead seek to address the problem both by (1) denying the defendant the facility to make unsupported assertions of the sexual behaviour of the complainant on “other” occasions, and by (2) requiring judges to direct juries that there is a presumption that injuries which caused death were not consented to. To my mind these reforms would at least go some way to meeting the concerns of We Can’t Consent To This. And they would work.


We regret that clause 65 should turn out to be so inconsequential, and that celebrations among campaigners are likely to be short lived. Part of the problem was that it was hurried though the House of Commons at the last minute, and then there is always the possibility of minimal reform being agreed and dressed up as something grander. That, one suspects, is why more effort was not made to find a compromise reform concerning evidence of the complainant’s “other” sexual behaviour.


But there is always time to consult. Even a hurried consultation would surely have drawn some response from groups who seek to practice safe BDSM. Lawyers may well have made some of the points offered above, and maybe the proposals made here would have been added to clause 65 – it is hard to see who could object to them. Indeed, one of the main aims of this network is to respond to requests for assistance where we feel we have the necessary knowledge.


Just recently, on another matter altogether, the Justice Select Committee sought evidence on the conduct of private prosecutions, and received volumes of evidence from interested parties within just two to three weeks. Time is rarely so pressing that consultation is never worthwhile. Let us hope that we can reduce the number of missed opportunities in the future.