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.