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

[Lamahaha]

I'm sorry I don't think this is a share token; I did try!

www.thetimes.co.uk/article/cps-backed-off-assault-charge-over-fear-of-rough-sex-defence-nk6ghgcs8

Prosecutors declined to pursue charges against a man accused of assault because of fears he would claim it was consensual sexual behaviour — a decision that will intensify pressure to outlaw the “rough sex gone wrong” defence.

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

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?

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 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.

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 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.

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 ?

.....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.

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.

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.

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.

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.