"Rough sex defence": CPS won't press charges

He killed Jane Longhurst. He protests that he didn't mean to, obviously. He tried to use the rough sex excuse. But he did some rather grim things with her body afterwards, for an "accident".

Watched a documentary on it two nights ago, in fact.

Ilovemystarter

I hadn't heard of the Coutts case - this is the HL case presumably ? I have just glanced at it now so haven't read it through - I will do, but I think I get the gist of it.

I always think with these cases that, even when they don't say it, part of what the "consent" idea is trying to say is that the participants agreed to the activity understanding that it was risky. So it begins to bring up questions more generally of what kinds of risks do we allow people to take, and what kind of liability do you have if you are involved with them, or give them equipment, let them jump off your bridge, or whatever.

I've wondered if a better approach than not allowing consent arguments around sex would simply be to not allow certain risky sex practices, rather like a town might pass a law not allowing people to do base jumping off of buildings as being too high risk or a problem for law and order.

But it would run afoul of the idea that the state shouldn't be in the bedrooms of the nation and that is something many people believe as a principle.

sawdust yes, provision along those lines would effectively mean the prosecution would no longer need to prove intent, which is why I think it’s very unlikely to take that form. (The need to prove a certain state of mind is a vital part of English & Welsh law). I just am not sure how - if the analysis in this thread is correct - questions of consent can feed through into intent, without provision along those lines.

It’s a horrific and interesting issue. I would recommend everyone who hasn’t already familiarise themselves with the Coutts case.

I suppose I’m worried that the real issue may be inappropriately low sentences due to judicial attitudes. In which case it’s those attitudes that need changing.

.....and because if that isn't the case then HH's amendments has no teeth whatsoever as no law is being changed - as far as I can see.

Is the provision perhaps going to say that the necessary state of mind for murder can be inferred in a case where the defendant at the time of the killing was engaged in a sexual practice involving violence, whether or not consensual?

And so the question of intent is effectively irrelevant, such prosecutions can never result in a manslaughter conviction but murder each time ?

'I had a discussion with another poster on here that Brown was an irrelevance because it was homophobic and that in practice for heterosexuals then it barely applied. Well it has but rarely. And not to the same degree of harm'

Surely the answer is to prosecute men who injure and kill women, as well as men who injure and kill men.

I would say it's both homophobic and misogynistic.

Negligent homicide is considered manslaughter in the UK, not oopsie daisy guess we can't charge him with a crime since he didn't intend to kill her.

I mean that sounds potty but I think it’s not the “defence” which doesn’t exist (though you could say anything for a defence) but the effective situation where intent is construed by the alleged fact that the woman consented read wanted a degree of harm to happen for her pleasure.

In these cases, there is barely any acknowledgement that it might that the perpetrator might have sadistic or sexual motivation for their conduct.

I don’t of any articles, but I think part of the intent might be said to give the partner sexual pleasure, and that death was not intended. And therefore you have to assert consent to the conduct as a matter of evidence to indicate you did not have this intention.

I’m finding this discussion difficult.

To be convicted of most offences (other than strict liability ones) you need to have a certain state of mind. The state of mind needed varies from offence to offence. In the case of murder, the state of mind is intent to kill or cause - grievous bodily harm? Is that right?

And these men, as in that disgusting Graham Coutts case, are arguing they don’t have the necessary state of mind for murder - essentially ‘I was just trying to have fun, not kill or inflict gbh, because I get my sexual kicks out of being violent to women’?

If this is what’s happening, why is (alleged) consent even relevant? Isn’t the issue about proving intention where the defendant argues he intended not to kill or cause serious harm but achieve his own sexual satisfaction?

Are there any articles in that discuss this from the legal point of view?

I’m just struggling to see how in the context of a common law offence requiring a certain state of mind, anything can be achieved by a statutory provision that focuses on consent. Is the provision perhaps going to say that the necessary state of mind for murder can be inferred in a case where the defendant at the time of the killing was engaged in a sexual practice involving violence, whether or not consensual?

The point is exactly that. The state has to prove intent for crime. So stating “consent” after the fact negates a lot of the problem for defendants.

The only way to get around this is to reverse the burden of proof and make the defendant prove that there was consent to BDSM or “rough sex” etc. There are lots of problems with that too.

Some posters might know better than me; didn’t Harriet Harman try some similar with consent in cases of rape?

Sorry if that was in any way derailing btw! Just saying it seems near impossible sometimes to prove it isn't consensual... :(

This was so maddening to read but also not surprising at all. I reported a man to the police when I was 22 (he offered me a lift home on a first date and drove me out of London and wouldn't let me out of his car - you can guess what happened next). The police didn't even put the case to CPS as he said it was consensual rough sex (the police had pictures of bruising, evidence it was unprotected, anal on top of everything else). And yes the customary 'what were you wearing', 'the investigation has been punishment enough for him' comments by the police on top of them calling my male friends to ask about my sex life. This was only 5 years ago.

Bruising around my neck from him grabbing it, bruising everywhere else... but totally consensual. Sure. Yeah that makes sense.

I had a discussion with another poster on here that Brown was an irrelevance because it was homophobic and that in practice for heterosexuals then it barely applied. Well it has but rarely. And not to the same degree of harm.

The body modification case (MB) was an interesting example where the law was applied and strictly as a matter of public policy. In the end that is why you cannot consent to serious assault - the potential for abuse is huge if that was allowed to develop further.

I think this HH amendment is backed by the Prime Minister. That would mean it will go forward to be part of the DA Bill. It will be very interesting to see what results (however imperfect).

Any advances women make seem to be turned on us.

In the 90s,00s maybe (can't remember) consent became a big deal. Women seemed to have made gains around sex crimes around it.

In the longer term men, especially younger men, have ingested the idea that as long as you get a yes you can do whatever you like pretty much. And if course it's being used against us in court. But she said yes? To GBH? Yes she wanted it. And brown seems to go by the wayside.

Men's murder of women is now handled by prosecutors the same way they handle rape. They do not prosecute because it is a he said/she said situation, except she can't say because she is dead.

'Campaigners argue that the defence should not have been open to any defendant since 1993 when a test case, R v Brown, in the House of Lords resulted in the conviction of a group of men for assault and wounding even though their sadomasochistic victims willingly participated in the violence.'

For anyone not sure this is the brown case ^^.

A legal precedent (if that's the right term) that a person cannot consent to acts like wounding or assault.

There was also the recent case about the body modification artist who went to prison, he had written consent from the people he carried out modifications on

www.google.com/amp/s/amp.theguardian.com/uk-news/2019/mar/21/tattooist-dr-evil-jailed-for-performing-ear-and-nipple-removals

A lot of women found that judgement really interesting in the light of the cases talked about in the previous guardian article posted.

I think I would agree with the idea that in law, that strictly speaking there is not a “rough sex defence” for murder. You cannot consent to your own murder. It’s debatable if you can really consent to anything more then mild ABH.

What is happening is that an alleged taste for BDSM is enough apparently to make the CPS charge murder, because they say that alleged sexual activity is enough to be evidence that there was not intent to murder or cause GBH with intent.

There is then a lesser charge of manslaughter by gross negligence.

Both murder and manslaughter could get you a life sentence. But only murder will allow that a life sentence must be given; whereas for manslaughter, it will be very much less because the harm and culpability cannot be said to be the same, even if the woman has died. Broadhurst got three years eight months for gross negligence manslaughter for the death of Natalie Connolly. That is why we are where we are.

There is a problem with this because at least in some cases it looks like the CPS is not willing to go for a murder charge not perhaps on the basis of all the evidence but instead it is focussing on sexual activity and consent to the exclusion of other factors (prior convictions of offender etc). In other words they may actually be anticipating what is said by defence counsel and also assuming that on the use of “consent” means that it is not worth bothering doing. There are lawyers who say that consent to matters like GBH is possible. In boxing yes. But in the context of sexual relationship then as a matter of public policy it should be made clear via the Harman amendment that you may not consent to that and it is not lawful. On one account this is what the law says already, but it is case law and not in statute.

HH’s amendment throws up lots of other legal issues; what perhaps is really the problem is that institutionally, people are really too ready to believe that all BDSM is consensual and lawful. Some of these cases are very problematic - people who strangle each other for example where there is an overlap with domestic violence because strangulation is a common way of killing women.

I am uneasy as to the “consent” but I did not mean to kill or cause serious harm in cases of death. There is no one there to dismiss what is a self serving account (true perhaps for all defendants) but on the grounds of public policy it needs to be clearer why Brown applies and how.

Sawdust. Here's the article posted just now. Please read it and tell us if there is any part of this you do not see as 'concocted' (to invent an excuse, explanation, or story in order to deceive someone; Cambridge dictionary).

www.theguardian.com/society/2020/jun/03/rough-sex-defence-led-to-over-60-victims-having-to-deny-giving-consent-finds-research

'There IS a defense in these cases - the defendant's defense is that they had no intent to kill [or cause GBH] - intent being one of the cornerstones for a murder conviction.'

'Because if you intend to commit GHB ie the section 18 offence (as opposed to the S20 offence) AND the victim dies as a result then that is murder.'

In the case that the argument is there was GBH but it was consented to as part of sex, you have explicitly stated that it must be a murder charge, and therefore cannot be a manslaughter charge.

You seem to have changed your mind?

@WomanDaresTo
Thank you!! Tote bag and Tee coming my way!

BobbieDraper

here!

Hi all - there's a good piece in the guardian tonight on our latest research:

More than 60 victims have been forced to go to court over the past decade to deny that they consented to strangulation, assaults or violence, according to the campaign to end reliance on the “rough sex” defence.

www.theguardian.com/society/2020/jun/03/rough-sex-defence-led-to-over-60-victims-having-to-deny-giving-consent-finds-research

Once you include homicides, that's 97 women in 10 years in the court system who have been killed or injured in "rough sex" claims. And just based on our research - this will only be a sample of cases.

@FannyCann

Where can I get the T-shirts? I couldnt find a shop link on their website.