Excuse for murder- ‘sex games gone wrong’

[NettlesInTheNightGarden]

I’m so annoyed, been following the topic as I knew one of these women who was murdered. So devastated for her family, her friends and her children. To be killed is horrific enough, but to have it portrayed as consensual sex that went wrong is just unacceptable

bylinetimes.com/2021/08/06/whats-gone-wrong-with-the-sex-game-gone-wrong-defence-ban/

I don’t know much about law - but what would people say if someone took a knife and stabbed someone and said that they didn’t intend to kill them - only cause some hurt? It’s like an attack gone wrong. I guess they can ban or severely restrict blocking the breathing apparatus if it is done (eg in a film to demonstrate dangers of violent sex) - then perhaps safety precautions need to be taken (eg additional person present, must have multiple mechanisms for people to say stop). Could this be seen as a correlate of banning people carrying knives with a certain type of blade or guns?

I can’t really think of a reasonable situation where it is acceptable to block breathing apparatus (eg windpipe, mouth and nose) except maybe in plays/films to depict harmful situations.

Also - I would hope rough sex gone wrong people were put on a sex offenders register.

This is the crux for me -

'What is so upsetting and painful is that, because the woman has died, her voice is lost. Her killer can claim consent and she can never answer back. This is where Harman is right – men blame their victims for their own deaths and that the victim has no say. She has no defence. '

The intricacies of murder v manslaughter are often a mystery frankly, along with the minds of juries.

This man was acquitted of murder and got manslaughter instead. He had dug the hole he intended to bury his wife's body in well in advance. He had absolutely demonstrated intent so I don't know wha other reason there was for the jury's decision.

At least the judge wasn't having any of it and gave him 26 years.

www.dailymail.co.uk/news/article-1390359/amp/BA-pilot-bludgeoned-wife-death-pre-nup-agreement-cleared-murder.html

@FannyCann I know that with my friend, they allowed him to plead guilty to manslaughter rather than pushing for murder because there was a chance they wouldn’t get the murder and he would then be free. This was a guaranteed win, even though it isn’t what he deserves

Why do some men hate women so much they feel the need to kill them?

Why do they think they should be so powerful?

@FannyCann I hadn’t heard of that evil man and what he did. I can’t think of a more textbook case of murder. Shocking.

I’m annoyed at people who pedantically point out that this isn’t a proper “defence” but is rather a lack of mens rea for murder (no intention to kill or cause serious bodily harm). So change the elements of murder! If you do something so obviously reckless and dangerous that serious harm would be a real possibility then that should be taken as intention to cause harm. Women aren’t accidentally dying due to freak accidents during sex - they are dying due to men deliberately choking them, which any person knows carries a risk of death.

but what would people say if someone took a knife and stabbed someone and said that they didn’t intend to kill them - only cause some hurt?

You can't afford to take a black and white outlook with no wriggle room. What if the scenario above was in self-defence? Should they be convicted of murder - did they intend to kill that person? What if the person with the knife was in an altered state of mind through drugs or mental health problems? Can we truly say they had the intent to kill? What about an woman who snaps after years of violence and abuse from her partner?

If you take the approach that if you stab someone who dies, you are automatically a murderer who will go to prison for life, you'll send a lot of people to prison who don't deserve it.

In the case of the rough sex defence, SB's twitter thread is worth a read (it's also linked into the article in the OP): twitter.com/BarristerSecret/status/1278411380836708353

@WeeBisom

I’m annoyed at people who pedantically point out that this isn’t a proper “defence” but is rather a lack of mens rea for murder (no intention to kill or cause serious bodily harm). So change the elements of murder! If you do something so obviously reckless and dangerous that serious harm would be a real possibility then that should be taken as intention to cause harm. Women aren’t accidentally dying due to freak accidents during sex - they are dying due to men deliberately choking them, which any person knows carries a risk of death.

It's not pedantry, it's how the law works in this country.

If you do something so obviously reckless and dangerous that serious harm would be a real possibility then that should be taken as intention to cause harm.

Even in cases of self-defence or mental illness, as I outline in my previous post?

The law has to walk a very, very tricky line, because it needs to take into account myriad scenarios whilst at the same time applying the rules fairly.

I am not sure how we could change the threshold for murder in the way you describe without over-convicting many people who genuinely didn't have an intention to kill the victim. Think of the awful miscarriage of justice against Sally Challen - do we really want to make that kind of thing more common?

I think this is confused because of the mix-up between the legal definition of murder vs manslaughter, and the pleading element.

The difference is important - it isn't the same to intend to kill someone, as it is to take an action without that intent, but where there is negligence in terms of foresight. Both are culpable, and also different to some real freak accident where no one would have expected death to be a consequence. Maybe someone is blindfolded during sex, trips, and is killed due to head injury. Probably not a culpable situation.

But people often in all kinds of murders will plead to manslaughter in order to avoid a murder conviction, even if it really was murder. It's them up those making the decisions about prosecution what the chances of a conviction are and to balance that against the surety of the lesser charge. It's not a scenario confined to claims that it was a sex game gone wrong.

I think passing a law to prevent blocking someone’s airway would help this - to make it unacceptable for people to do this during sex or fights because of the clear danger that it poses. It may make people who do deliberately choose to do this more culpable for their actions if it did result in a death.

I notice that there is a clause that says intent to kill or cause serious harm - so if someone didn’t want to kill someone, but wanted to cause serious harm to them but misjudged it, that would be murder? What’s the difference between harm and serious harm?

I say it’s pedantry because when people say the “rough sex defence” they mean something like the rough sex “excuse” - the excuse why deliberately choking a woman to death should not be considered murder. The secret barrister jumps on this language and says that it’s not really a “defence” in the technical legal sense (such as pleading “self defence”, “loss of control”, or “insanity” ) and that the law change has not, in fact, transformed this into any kind of legal “defence”.

This is an accurate description of the law, but it’s also frustratingly (to my mind) pedantic and misses the normative point about what the law SHOULD be. Feminist campaigners are trying to make it so that men who willingly choke their female partners to death during self do not so easily evade a murder conviction. There is clearly sexism at play in these cases - all the victims are female, all the perps are male , and it ties into this sorry patriarchal story that women enjoy and consent to being seriously injured during sex (like having arteries severed or airways restricted) and it’s just one of those unfortunate things. My point is that maybe our homicide law is due for an update - it’s hopelessly ancient and archaic. Scottish law includes (I believe) gross negligence as murder, so something like that could be adopted in England- if you are stupid enough to choke someone in a consensual activity and they die, then it’s murder. Could perhaps also get rid of the automatic life sentence which I think puts many juries off convicting.

If you intend to cause GBH (aka “serious injury” and you end up killing somebody then it’s murder. So anything including a knife or gun will almost always be murder even if there was genuinely no intent to kill. The problem with strangulation is that the defendant can argue that he had no intent to cause serious harm and that’s often going to be just plausible enough to raise reasonable doubt and bump the crime down to manslaughter, and even if it isn’t it’s a very distressing argument for the victim’s family to hear. You’d need specific legislation.

I'm confused.

People who are driving badly and kill someone can be done for manslaughter. I've seen loads of things in the news where there was not intent.

So had a look.

CPS

'Murder and manslaughter are two of the offences that constitute homicide.

Manslaughter can be committed in one of three ways:

Killing with the intent for murder but where a partial defence applies, namely loss of control, diminished responsibility or killing pursuant to a suicide pact.
*Conduct that was grossly negligent given the risk of death, and did kill ("gross negligence manslaughter"); and
Conduct taking the form of an unlawful act involving a danger of some harm that resulted in death ("unlawful and dangerous act manslaughter").'

Surely the * is the one here. No intent. Grossly negligent.

Ah ok

They're saying this means that only can be prosecuted for manslaughter.

The max term is the same as murder- life.

So I'm not sure it makes much of a difference.

If the woman is dead he can say consent and can't prosecute for murder.

Except they can
If there is evidence pointing to intent.

Without any evidence of intent to murder. and with the woman dead.

I can't imagine the getting a murder conviction would be likely. No evidence of intent.

So if I've understood correctly I'm ok with it as it is.

Am in domestic violence relationship. Partner will use that defence if he kills me.

So sorry you are in a violent relationship @nosafeguardingadults

I think there is lots of excellent advise to be found on the relationships board here and I would encourage you to ask for advice regarding your safety and help to leave the relationship safely.

If you believe you are at risk this way could you (at a minimum, for starters) write a letter to a close family member or friend or to wecantconsenttothis.uk/
stating that you do not consent to violent sex? At least he won't be able to use that defence.

I just read that website @FannyCann Shocking

What is the solution? Make BDSM games illegal?

@MargaritaPie no, but allowing someone to murder and rape and say ‘oh it was an accident’ should be the baseline. Working out how to enjoy BDSM safely should be the alternative

Not all “sex games gone wrong” involve strangulation do they? I understand the monstrous John Broadhurst gave his victim his victim Natalie Connolly drugs, beat her and burned her with bleach and then knowingly left her to die at the bottom of the stairs without calling an ambulance even though he was aware she was seriously injured.

Somehow that amounted to “not murder” and a two year prison sentence. I don’t know what had to change in the law for this obvious murder to be legally considered murder, but not allowing claims of consent to be used as a mitigation when life-threatening injuries are inflicted seems like a baseline. Otherwise the law is incentivising monsters like Broadhust to murder their victims so that they can’t say that they didn’t consent.

@allmywhat

Not all “sex games gone wrong” involve strangulation do they? I understand the monstrous John Broadhurst gave his victim his victim Natalie Connolly drugs, beat her and burned her with bleach and then knowingly left her to die at the bottom of the stairs without calling an ambulance even though he was aware she was seriously injured.

Somehow that amounted to “not murder” and a two year prison sentence. I don’t know what had to change in the law for this obvious murder to be legally considered murder, but not allowing claims of consent to be used as a mitigation when life-threatening injuries are inflicted seems like a baseline. Otherwise the law is incentivising monsters like Broadhust to murder their victims so that they can’t say that they didn’t consent.

Where to start on a post like that.

Basically, if you misunderstand the facts of that case - as you have, then you will always be confused as to the conviction and sentence he received.

Read the sentencing remarks of the Judge - who had heard the case and listened to the evidence. crimeline.co.uk/john-broadhurst-sentencing-remarks-of-mr-justice-julian-knowles/

If you do read it, it might help to understand that the issue of consent is irrelevant when determining guilt or not. But when it comes to the next step, of determining a sentence, then consent is something the defense can then raise as a mitigating aspect. The above document is all about the sentence - and that is why the Judge includes it in his remarks.