By. Dr Don Macfarlane and Tamara Davis (SBP LAW)
WARNING: This article may be regarded by many as unpleasant, concerning, and unsettling. Nonetheless, it is our duty to ensure that victims of sexual abuse are protected within the law.
What is the ‘rough sex’ defence?
In criminal defences, the so-called “consent of sexual gratification defence” known publicly as the ‘Rough Sex Defence‘ is a frequent defence in criminal proceedings.
Essentially, a defendant argues that an injury or death occurred because of injuries sustained during rough, albeit consensual, sex. The defence has frequently led reduced sentences, altered convictions or even not guilty verdicts.
The earliest use of the Rough Sex Defence in the UK was in 1972 when Carole Califano’s killer raised the defence and saw his conviction reduced to manslaughter. Since then, the Rough Sex Defence has been used in approximately 60 cases. Why? Well, statistically speaking, there have been reduced convictions in about a third of reported cases. In the case of both Chloe Miazek (20) and Hannah Pearson (16), their killers received prison sentences of 6 and 12 years, respectively. Such sentencing risks losing public faith in the judiciary and puts many innocent lives at risk.
It is also important to recognise that the Rough Sex Defence has become increasingly more relevant in the killings of LGBTQ people, whereby perpetrators often meet their victims through online dating apps such as Grindr.
The problem with rough sex as a legitimate ‘defence.”
Commentators argue that the Rough Sex Defence has become a normalised form of violence against women, although sections of the LGBTQ community have expressed concerns too.
By portraying this violence as consensual BDSM, it suggests the innocent party ‘asked’ for the physical harm they suffered. What has failed to be distinguished, however, is the difference between rough sex and sexual violence.
To suggest someone can consent to serious injury or death during sex is a blatant disregard of the extreme sexual violence they have suffered. Bluntly, the Rough Sex Defence is a clear form of victim-blaming, and is all too similar to the disturbing argument throughout history that they were ‘asking for it’.
In R v Brown  (a case that concerned gay men engaging in sadomasochistic sex) it was held that someone could not consent to serious harm, and yet the court’s willingness to accept the defence sheds light on the misogynistic approach to consent within the legal system.
The Rough Sex Defence echoes the previous provocation defence (only abolished in 2009) that suggested a woman effectively drove her partner to kill her (which, in this authors view is ludicrous) – only this time men are using their partner’s sexual preferences to erroneously justify their criminal behaviour. The judiciary needs to be educated and trained to understand this sensitive issue and be confident enough in their judgment to stick rigidly to sentencing guidelines; leniency, in this case, is not in the public interest.
Reasons for the increased use of the Rough Sex Defence have been linked to the rise in accessible violent pornography and the popularity of films such as ‘50 Shades of Grey‘ (hence its colloquial name the ’50 Shades Defence’).
Young people, like the judiciary, need to understand what a happy and healthy relationship looks like and that pornography is often extreme and atypical. More specifically, the growth of ‘rape porn’ feeds a conflicting message into mainstream pornography that women can consent and enjoy sexual assault. Sexual norms have been influenced to the extent that more than 1/3 of women are subjected to unconsented slapping, choking, gagging or spitting during sex (Savanta ComRes). These aren’t isolated incidents, and it is evident that open discourse is required to find the balance between sexual autonomy and ensuring justice for victims of sexual violence.
Events leading to the rough sex defence ban
In 2018, Grace Millane (22) was killed by strangulation whilst travelling in New Zealand. Despite forensic evidence arguing the contrary, her perpetrator raised the defence of rough sex, arguing she had died in a sex game ‘gone wrong’.
Amongst the midst of victim-blaming headlines such as ‘Murdered Brit Grace Millane was a member of BDSM sites and asked the ex to choke her in bed’, movements such as ‘We Can’t Consent To This’ grew, and more than 68,000 people signed a petition to ban the Rough Sex Defence, illustrating the broad level of support and that this is not a niche issue. The UK government has finally adhered to public pressure and in 2019 justice minister Alex Chalk announced the defence would be outlawed in the upcoming Domestic Abuse Bill 2019-2021.
What protections will the Domestic Abuse Bill 2019-2021 provide?
The Domestic Abuse Bill will implement various measures to aid victims of domestic abuse during proceedings, including the prohibition of cross-examination in certain circumstances. In particular, Section 65 of the Bill provides that ‘consent to serious harm for sexual gratification [will not be] a defence’.
If given Royal Assent, the Domestic Abuse Bill will eradicate the Rough Sex Defence and prevent convictions from being unjustly reduced. This is a welcome measure that will pave the way to eradicating victim-blaming within sexual abuse cases, whether they are male or female.
For too long have victims of sexual abuse been condemned for the harm they have suffered – including, as the Rough Sex Defence demonstrates, even when they are murdered during sex. You cannot and should not be able to consent to your own death. Think of public policy. The Domestic Abuse Bill will, as it stands, ensure victims are better protected within the legal system and challenge the persistent culture of victim-blaming.
False sexual accusations are devastating. Even if you are found not guilty, your reputation will be lost, and the months of bail due to bail conditions will sometimes separate you from your family. Have you been affected by a false sexual allegation or a victim of sexual abuse? Contact one of our sexual offence solicitors for expert legal advice.
If you or anyone you know has been affected by any of the issues in this article, you can find support at:
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