We Can't Consent to This: all the "sex game gone wrong" defences

[WomanDaresTo]

Hello - doing this under my semi-public NC.

On FWR we've been grimly collating the stories of women killed by men who claim they've died in a "sex game gone wrong". Given Natalie Connolly's killer's sentence has received rightful outrage, and given even the excellent Harriet Harman thinks this is an unusual defence, I thought it time to pull them together in one place:

www.wecantconsenttothis.uk

It's not a fun read, of course. I know it's not also complete - will keep updating but do of course let me know of other cases, and mistakes.

But perhaps we can help get to a place where women are not deemed to have consented to bodily harm, or to death.

and unmumsnetty Christmassy hugs to the families and friends of these women.

if anyone wants me I'll be having a humungous

OP, it is fantastic that you are looking at this issue and I agree that it is deeply worrying that men can evade responsibility for horrible crimes committed in the context of sex.

However, because I want your campaign to succeed, I do think it's important that it is based on fact and there seems to be a lot of confusion about the Broadhurst case.

To prove murder, you have to prove that the injury led to the victim's death, and that the accused intended it to do so. The prosecution in the Broadhurst case was unable to prove either. The primary cause of death was alcohol intoxication. The head injuries may have contributed, but the prosecution was unable to prove that Broadhurst inflicted them. If you can't prove that the accused actually caused the death, it is clearly impossible to prove intent. His conviction for manslaughter was for his negligence in failing to get help for her, not for inflicting any injury on her.

No one argued that Natalie consented to the injuries that contributed to her death.. There is an excellent summary of the reasons for the verdict here

So, although this is a tragic case and has rightly drawn attention to the 'sex game gone wrong' defence - this was not the defence actually used in the Broadhurst case.

XXcstatic thank you for the link to the blog, which is interesting.

Two questions:

• if Natalie was so drunk that intoxication was probably the primary cause of her death, why did the judge accept in Broadhurst's favour that she consented to the bottle being inserted? You couldn't be more intoxicated than she was, so why was it said she could consent? If it wasn't for the judge finding she consented to that, Broadhurst could have been found guilty of assault by penetration/GBH, and/or it would have increased his potential sentence for gross negligence manslaughter
• the judge said that Broadhurst loved Natalie, and that was treated as a mitigating factor in his sentencing. Given what Broadhurst said to the paramedics when sober, why did the judge accept his evidence that he loved her?

OP I think the website is really valuable, and unless there is a satisfactory legal answer to my two questions, I think the Broadhurst case should stay on as an example of the 'sex games gone wrong' argument succeeding in reducing the severity of conviction/sentence.

Thanks both. Yes - you won't be surprised to hear that, although IANAL, I disagree with Barrister Blogger on this. Two examples:

[on the bottle leading to bleeding:] That probably amounted to grievous bodily harm, but it was an injury consistent with an accident (if done with her consent) or with a sexual assault (if done without her consent), rather than a deliberate attempt to injure or kill.
I think there is a strong argument that you don't do this unless you want to injure someone.

On the 40 injuries: This is because Natalie had sustained similar bruises during consensual sex with Mr Broadhurst before.

But she hadn't - she'd been spanked, had bruises on her arms from being held. There wasn't (AFAIK) evidence that he had previously, consensually "seriously" caused ABH to her breasts, buttocks and back, with a boot.

I read this last week and thought there would have been someone shouting HEARYE HEARYE WHY ITT IS RIGHT THATT WE MUST SET AFLAME THE WITCHES

We'll keep Natalie in as part of this campaign must include the press - a search for Natalie's name brings back a whole host of rough sex/sex game headlines, regardless of whether that is "truly" what happened or not.

BTW it really is worth listening to Harriet Harman's whole piece on Woman's Hour last week i hadn't - she talks about the heft required to remove the "nagging and shagging" defence, and why she fears that this "fifty shades"/rough sex defence is the new get out for men who kill their wives. She also says she had not previously heard of this type of rough sex/sex gone wrong defence being used before.

www.bbc.co.uk/programmes/m0001l78

We've shared our list of women with Woman's Hour too, will let you know if we hear more.

Hi pigmy - I'm a doctor who does medico-legal work, not a lawyer, so definitely not claiming to be an expert but I understand that the CPS did initially charge Broadhurst with both assault by sexual penetration and GBH, but that he was formally acquitted of both.

Broadhurst didn't have to prove that Natalie did consent of course- the Prosecution had to prove that she didn't, or was incapable of consenting. It would be very difficult to know in retrospect exactly what her alcohol/drug levels were at the time of the vaginal injury, and therefore probably very difficult to prove lack of consent. According to the blog I linked to above, the defence claimed to have evidence that Natalie had shown interest in this type of extreme sexual activity in the past, though we don't know how strong this evidence was, or whether it was presented in court.

I read this last week and thought there would have been someone shouting HEARYE HEARYE WHY ITT IS RIGHT THATT WE MUST SET AFLAME THE WITCHES

Hi OP, I'm saddened if that is aimed at me, because I am most definitely not shouting that.

As you showed in your OP, there have been very disturbing cases of men using the "she wanted it" defence. I have personally treated women (and children ) with horrific sexual injuries and the last thing I want to see is anyone getting away with sexual assault. All I am saying is that it is risky basing a campaign against the 'sex game gone wrong' defence on a case where this was not the defence used.

Though I get your point about the media value of Natalie's case, I think centring your campaign on it will make it easy for MPs and the MoJ to dismiss campaigners as not knowing what they are talking about. However, I hope that I am wrong about this and that you are right, because I really want your campaign to succeed. And I am not defending for a moment anything that happened to Natalie or the derisory sentence handed down.

Is the conclusion of all this that women who have at any time consented to 'rough sex' can never have any protection from the law as it will always be assumed that they consented to any type of assault that leads to their death - no matter how unbelievable or incredible? Natalie's case will be the 'case law' that proves that these women are always responsible for their own deaths at the hands of men? As frankly, that's how that blog reads to a non lawyer.

"Broadhurst didn't have to prove that Natalie did consent of course- the Prosecution had to prove that she didn't, or was incapable of consenting."

Is this true? I'm not sure it is true if she had sufficient drugs or alcohol in her system to make consent problematic. I am not a lawyer but I am not sure how a woman could consent to this. My opiniom here, because she died we will never know what she consented to.

Hi feminist No -quite the opposite. Consent was irrelevant because the law is absolutely clear that no one can consent to his/her own killing, even in the context of a consensual BDSM game. So it's not that her consent didn't matter because she was assumed to have consented to the sex - quite the opposite: her consent didn't matter because - even if it had been absolutely clear that she had consented to all the sexual acts - he would still have been guilty of murder/manslaughter if his actions led to her death. You cannot consent to being killed.

The problem for the prosecution was the lack of evidence that anything that Broadhurst did caused her death. The primary cause of death was alcohol/drug intoxication, and no one has suggested that he forced her to take the alcohol or drugs. The head injuries may have contributed, but the prosecution were unable to prove that he caused them - which is not as ludicrous as it sounds as it is common for highly intoxicated people to injure themselves. Add to this the high burden of proof (beyond reasonable doubt) and it is not surprising that it was hard for the Prosecution to prove murder.

Having said all of this, I am one of the people who has written to the AG to ask for a review of the case. I think the sentence was disgracefully low. And I totally support the OP's campaign against the 'sex game gone wrong' defence.

.

Did the vaginal bleeding not contribute to her death?

Wasn't there actual discussion that she "consented" to the insertion of the carpet cleaner which resulted in the arterial bleeding? It's just such a warped set of values where it seems he and his expensively purchased lawyers and "experts" (bleurgh) argued that this was consensual?

I'm not sure it is true if she had sufficient drugs or alcohol in her system to make consent problematic

That's why I added "or was incapable of consenting", IG. All the alleged sexual acts, as opposed to the killing, would be a crime if Natalie either did not give consent or was incapacitated, so incapable of giving consent.

The prosecution had to prove either that she did not consent or that she was incapacitated and unable to give valid consent at the time. The problem is that that is extremely difficult - they won't have had evidence of exactly when the drugs and alcohol were ingested; the speed of metabolism and excretion can be affected by many factors; and each individual responds to drugs & alcohol differently. It is incredibly hard to prove beyond reasonable doubt how intoxicated someone was several hours before an autopsy takes place.

It's just such a warped set of values where it seems he and his expensively purchased lawyers and "experts" (bleurgh) argued that this was consensual

Agree. We don't actually know whether this was argued in court, nor do we know why he was acquitted of GBH and sexual assault. But, like everyone else on here, I"m sure, I found many of the judge's sentencing remarks about Natalie's consent offensive and unnecessary - given that the sentence was for manslaughter by negligence, all the stuff about her consenting seems totally irrelevant and I understand why it has caused such concern.

Did the vaginal bleeding not contribute to her death?

It's really unclear from the rambling sentencing remarks. However, the reports of the autopsy evidence are that the cause of death was alcohol intoxication, and that the head injuries may have contributed. As far as we can tell from what has been reported of the medical evidence, the vaginal injury does not seem to be been a contributory factor - although it's not surprising that people are confused about this, as the sentencing remarks seem contradictory on this point.

Thank you for sharing this, OP. I had no idea how widespread this was, and it's really good that you are bringing more awareness to this.

IMO, it shouldn't be a viable defense- there should be a change in the law to make the man culpable if he has reasonable belief the act could lead to serious injury or death.

Surely if it’s impossible to prove that Broadhurst murdered Natelie, given the injuries she sustained that obviously couldn’t be self inflicted nor consented to, plus his callous and remorseless behaviour as witnessed by the paramedics, then the law is an ass where sexualised criminal violence against women is concerned.

there should be a change in the law to make the man culpable if he has reasonable belief the act could lead to serious injury or death

That's exactly what the law currently says.

The CPS couldn't prove that Broadhurst murdered Natalie because she died of alcohol/drug intoxication, not her sexual injuries. That's why I don't think her case is a good focus for a campaign against men using the 'sex game' defence - though I do take the OP's point about the media impact.

XXcstatic

As the blog you linked to explains, Natalie's "consent" was relevant to sentencing. It contributed to Broadhurst being given a lower bracket sentence.

What I have difficulty with is that Broadhurst's expensive defence expert said Natalie had the highest combination of alcohol and cocaine he'd ever seen. As a result of which the prosecution couldn't prove the injuries Broadhurst inflicted on Natalie caused her death. However, the judge assumed in Broadhurst's favour that she was not sufficiently intoxicated to be unable to consent to the bottle being inserted.

It seems to me Broadhurst is having it both ways:

• She was so drunk that my beating didn't kill her, the alcohol did. Therefore no murder.
• She was sober enough to consent to the bottle being inserted. Therefore no GBH/assault by penetration.

Plus why would she knowingly take excessive alcohol and drugs if she wanted to enjoy the sex?

Nothing adds up unless one understands perpetrator strategic sexualised violence - if that is considered it’s bloody obvious he spiked her drinks etc made sure she was unable to fight back and then tortured her and killed her - in revenge for finding out her communication with another guy.

That’s why the same laws as applied to male criminal violence are not fit for purpose for sexualised violence against women and kids where often it is deliberately carried out covertly without witnesses being present and too often male judges and jurors believe rape myths - the latest one being it was consensual rough sex gone wrong - very bloody convenient for the perpetrator

Did the vaginal bleeding not contribute to her death?

It's plausible that it might have done had her death from intoxication not anticipated/pre-empted her death from shock/blood loss. In the latter case, had she died from the bleeding, the charges and consequences might have been very different.

I don't know but I think Natalie's lack of covering, her injuries, her intoxication, and lying on a floor might have made it very difficult to determine time of death beyond a range.

Hi OP, I'm saddened if that is aimed at me, because I am most definitely not shouting that.

No - directed at the online legal opinionators who weigh in after these public cases of violence against women.

Marina Hyde put it best after the decision to parole John Worboys:

Across the airwaves and the internet since news of his release broke, a lot of chaps have taken the time to explain in small words why what has happened is perfectly reasonable. For my money, rather too many (though not all) of these teeter on the brink of finding many women’s reaction to the news “emotional”. Perhaps it takes a control to the experiment to remind them that it is possible to understand how a situation has been arrived at and still have rather strong feelings about it

But the thing is – and the Great Explainers must prepare to have their minds blown by this – it is possible that we also have a problem with all this. We understand it, and we also disagree with it. I know it’s mad, but we don’t feel the automatic need to reflexively rationalise the status quo as if it’s all predetermined science, and you might as well argue against gravity as disagree with it. We even wonder – imagine! – whether getting angry about things is a step towards getting them changed.

I'm really glad to have your contributions XX, because if we find (following the AG's review) that the law worked as it "should" in Natalie's case, then that's an even stronger reason to look at changing the law, and the CPS's approach to projections, and Sentencing guidelines, and training given to judges and....

this is so important i hope the right people listen and never let it happen again, im often astonished at the judges how do they keep jobs with such attitudes and incompetency.

So the barrister blogger says it's 'utterly nonsense' that Broadhurst carried out a brutal attack on Nathalie. So how did she come to be so horribly injured? Well, the bruises were there because she asked for it (according to Broadhurst - she's dead, so can't comment). The broken eye socket was because she fell over (according to Broadhurst.) And the arterial bleeding was because he acquiesced to her demand to insert a bottle of cleaning product in her vagina and it hurt her 'by mistake'. It was all just one long series of unfortunate accidents or injuries caused with her consent. Er...is no one else just a tiny bit suspicious about this account? Especially seeing that it's given by the last person who saw her alive, who has a huge motivation to lie about what actually happened that night?

Some other messed up things on this blog:

1. The bruises were not regarded as an intent to seriously cause her harm because she'd suffered similar injuries during consensual sex before.This blogger doesn't seem to realise that this is exactly one of the things we take issue with. She consented to being injured in the past, so she MUST have consented to being injured in this present case. If a woman has enjoyed BDSM activity in the past there is a presumption that injuries are inconsistent with an intent to kill.

2. Something that's boggled my mind about this case is how inserting a bottle of cleaner into a woman's vagina is not regarded as reckless or highly likely to cause injury. In English law individuals cannot consent to actions that are likely to cause them serious harm. So why is this case different?

3. The sentencing guidelines make it clear that beating a woman and inserting a bottle into her vagina isn't serious enough to bump his actions into a category B offence. I'm sorry, but if these actions aren't regarded as 'serious' then I don't know what is.

WeeBisom so true. So ducking wrong.