Death of the “rough sex” defence…

[NitroNine]

Over in NI a judge has halted a bail application after a man accused of choking a woman announced in court: “She likes rough sex and being strangled”. (Link archived at archive.ph)

In July 2022 the law in England & Wales was strengthened to remove the so-called “rough sex defence”. Northern Ireland actually got there a few months earlier, abolishing that line of defence is a specific provision of the Justice (Sexual Offences and Trafficking Victims) Bill of April 2022. Scotland has not brought forward any such legislation nor is there any plan to. Worryingly, the FM doesn’t seem to understand that prior to the legislative changes the rest of the UK had laws by which one could not consent to harm, yet the rough sex defence was rolling merrily through the Courts.

Seeing a judge shut down an abusive man so completely - especially in the part of the UK with the worst DV rates - is heartening. It would be even better if Scotland would get on board with the rest of the UK & accept the need to legislate the abhorrent “rough sex defence” out of existence. It’s quite something that women are STILL having to campaign to get their murders/manslaughters recognised.

The legal progress on this issue was brought forward in England and wales by an fantastic woman who was or is a poster on FWR. Fiona. Working with the women’s legal centre I believe another amazing group of women (who take donations)
I hope that they are very proud every day of what they achieved. Scotland need to follow suit too. Great that NI is doing this. This legal change is a brilliant strike against misogyny.
Thank you to the amazing posters on this thread too for clarifying the issues so well.

Sorry Centre for women’s justice
https://www.centreforwomensjustice.org.uk/about

Fiona’s brilliant campaign was called We Can’t Consent to This.
I hope that it goes down in feminist history as a beautiful example of cross party activism and legal working with Parliament. Scotland must catch up with this.

Thank you Fiona Working.

@WomenShouldStillWinWomensSports

The rough sex defence should never ever have been allowed

It never has been allowed. And no law has changed in these cases. The fact that the issue of consent has no bearing on these cases and this has now been put down into statute from well established and uncontestable case law is all well and dandy, but there's been no actual change in the law itself. No wonder people never understood it. (@ErrolTheDragon)

i dont know how the defence of consent was ever used - victims dont consent to death or damage due to choking...and i absolutely do not buy the "accidental" part

any true crime podcast fan will know it takes considerable force applied over period of time to choke someone enough for them to lose consciousness let alone die. Attackers (lets call it by name) would have had enough time to realise something is off so at the very least they do it with a purpose of genuinely harming (if not directly killing) their victim

@PaintedEgg I agree. I would also have thought that a lot of force over a long time would been needed to kill some one. I used to do judo at one time and chokes and strangles were permitted holds and I never heard of any one being killed or losing consciousness.

https://www.mumsnet.com/news/mumsnet-joins-we-cant-consent-to-this-campaign#

Brilliant campaigning like this also raises awareness and starts conversations which is valuable in itself.

Brilliant campaigning like this also raises awareness and starts conversations which is valuable in itself.

Did it though ? I always thought it misled people and gave the wrong impression on what defence they actually opposed. I never saw the criminal law solicitor at CWJ, Harriet Wistrich call for "this change" in the law as she would have known full well that there was no such thing - she would have been a laughing stock - best left for the non-lawyers to focus on.

Also the Government's responses was heavily on the "Be Kind" message to WCNCTT, with it's use of words like "clarify, restate, claim, state, make clear, reported that"......

https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/consent-to-serious-harm-for-sexual-gratification-not-a-defence

Sorry @Slothtoes, I forget that not everyone reads [all] links in OPs so people will have missed “We Can’t Consent To This” being credited in the hyperlink from “July 2022”. Thanks for providing the information about them 😊

I need to jump in and clarify a few points here.

1. There is no safe way to strangle. There are a lot of dangerous myths out there which need correcting, every time. Using science and medicine more than true crime podcasts...It doesn't take a lot of force to injure someone. Blocking the jugular takes less pressure than opening a can of drink. If the jugular is blocked, then deoxygenated blood is prevented from leaving the brain, which can cause a build-up of pressure, resulting in haemorrhage. Blocking the carotid arteries, not much more pressure. That prevents oxygenated blood reaching the brain, and therefore has a similar effect to stroke. Nor does the pressure need to have been sustained for any length of time. If the arteries are occluded, people lose consciousness at an average of 6.8s, followed by seizures and incontinence at around 15s. These are all indicators of the brain being damaged. One of the difficulties, and why this has been hidden for so long, is there is sometimes a delay. Any pressure on the neck can result in tears to the carotid arteries. As these heal, clots develop. They can then become dislodged, resulting in stroke, days or weeks after the event. In fact, there is strong evidence suggesting that strangulation might be the second most common cause of stroke in women under 42. I repeat - no safe way to strangle.
2. Yes, 'chokeholds' are permitted in mixed martial arts. That doesn't mean it's right. It carries all the same dangers. And has resulted in brain injury. Including one of my patients.
3. Yes, lawyers did point out that people couldn't consent to serious harm against themselves, and that strictly speaking it didn't require legislation. However, the reality is it was being used as a defence, and successfully, partly because the courts weren't understanding the seriousness of strangulation and its potential harms. Having it clarified in statute has therefore proven very helpful, and other countries are looking to follow. Interestingly, some very senior lawyers were involved in crafting the wording eg Lord David Anderson, and Professor Ormerod, the former Law Commissioner. I'm not convinced they were just "being kind", and they were certainly not dismissive of the need.

Rant over 😊So happy to see this is being discussed here, and people are continuing to pay attention. As a doctor, and a mother of DDs, I find it terrifying, that such an abnormal act has been so normalised. We're used to seeing strangulation as shorthand on crime dramas for 'this is a bad person, and look how quickly their victim has died' - yet somehow it's fine to play around with in the bedroom or in the ring. It just isn't. We wouldn't say, oh, we just like to punch each other round the head, know how to do it safely. Of course we wouldn't, because we'd understand the potential for brain injury. The neck is a fundamental part of the brain's plumbing, and very vulnerable, and we need to think of it in exactly the same way.

Sorry sawdustfornypony I’m not really following you. IANAL but I think most people would agree that a clarification in statute of problem that was resulting in injustice to murdered women in case law is a good thing.
And also good if in the campaign for bringing this clarification (moot whether it’s best called ‘a change’ or not, OK- but it’s a new clarification so it is a kind of a change…) there’s wider awareness been raised around misogynistic defences being tried successfully in court, and around the dangers of assaults to the neck in any context?

And it’s always a good thing if cross party Parliamentary support results in statute which protects women better isn’t it. so it’s still important to commend excellent campaigning that has lobbied effectively to build that consensus.

Thought posters here might find it of interest that a thread has been created in response to this one:
https://www.mumsnet.com/talk/womens_rights/4936087-4936087-to-what-extent-should-you-be-able-to-consent-to-harm-in-sex

Stinkingbishop that was fascinating and very useful information, thanks for posting it 😊

sorry, i didnt mean its safe to choke, all i meant was that i dont buy you can accidentally kill someone this way - i dont believe one can hold another's person neck, keep applying pressure, be literally at arms length from the person's face and somehow fail to realise they are killing this person

Good. Nobody can consent to murder.

Watch the documentary about the murder of Grace Millane (UK backpacker in New Zealand).

You see the police interviews with her killer and what a cold blooded psychopath he is. These are the men trying to use the 'sex gone wrong' loophole.

@PaintedEgg I largely agree, actually. You would be able to tell if someone had lost consciousness, certainly if they were convulsing, and incontinent of faeces/urine. Even in the seconds leading up to losing consciousness, people's eyes fixate to the side, and then to the midline - this would look really 'alien' and frightening. As people become dyspraxic leading up to losing consciousness, again you could tell that they weren't responding to you.

And all of this is happening while you're face to face, really close, given your hands are there.

@stinkingbishop Thank you for your post. If I may, I'd like to add,

1. This point was well made. It does run contrary to most of the opinions that are expressed whenever this topic comes up. As you say medical science will win out in the end. But it does go directly in support of the heart of defence cases put forward by the defendants.
2. No issues here. After I had posted my post mentioning judo, I looked at a youtube video of women's judo competitions where they use choke-holds. It shows several clips - invariably once the hold is in place it only takes 2-3 seconds before the losing player is forced to submit as she needs to be released from the hold.
3. No, the reality is that consent was not being used as a defence. Do you not think it bizarre that according to you, the Crown Courts somehow forgets or misunderstands an important piece of case law as contained in R v Brown. This is not some obscure piece of law – it is gone through in detail in undergraduate law courses. If you think that consent was being raised as a defence, its you that has misunderstood the case. The defence in those rough-sex cases that results in the women dying is the defentant did not have the intention to kill. The campaign by WCNCTT was barking up the wrong tree. Did nobody have the heart to take them aside and point this out to them? All they have done is to set down in statute a piece of case law that was not in contention and irrelevant to the prosecution but cause a lot of confusion people minds. Just above this post @SapphosRock says "Nobody can consent to murder" - confusion, plain and simple. https://www.thejusticegap.com/the-so-called-rough-sex-defence-is-unlikely-to-change-the-outcome-of-trials/

I have heard psychologists talk about murder involving strangulation as being very linked to control and to having ultimate power over life and death. They link it to sadistic killers.

Also interesting but grim - the documentary here - the father (very very controlling man who made his family into a cult) would use strangulation as part of his abusive repertoire.

Some of the older children who escaped talked about this - thinking they were going to die. It's not an easy watch (spoiler, they did all get out alive, apart from the mum who died of cancer) but as a study of what can happen when a man like this has unlimited power over his family, my gosh, very powerful.

Interesting discussion from the grown up children as to how much their mum was complicit (she is seen in the background of abusive scenes, smiling apparently serenely), and how much she was a victim herself. She did at one point try to leave.

https://www.bbc.co.uk/programmes/p0g1dlt2

Psychologists on various podcasts/true crime (which I have to say I have stepped away from these days, so bleak as most concern women).

The one I recall was someone on BBC analysing the so called 'Bible John' modus operandi.