The ’50 shades’ defence: are the courts allowing women to consent to their own deaths?

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The ’50 shades’ defence: are the courts allowing women to consent to their own deaths?

Natalie Connolly, killed by her partner, was found with over 40 injuries including having her face sprayed with bleach after she fell unconscious

In the last ten years, the number of women killed in violent ‘sex games’ has increased by 90% and a new ‘rough sex’ defence has emerged in court for those who admit their homicide. ‘Men are using the narrative of womens sexual enjoyment of being injured by violence to escape murder charges and face only manslaughter charges,’ Harriet Harman MP and Mark Garnier commented last week.

Natalie Connolly, mother of one, was killed in 2016 by her partner John Broadhurst. The 26 year-old was found with over forty injuries, internal trauma and a fractured eye socket. The jury heard how Broadhurst had ‘lost it’ during the night, wanting to ‘teach her a lesson’ for sending photos to other men. He penetrated Connolly with a bottle of carpet cleaner, causing an internal haemorrhage, and sprayed her face with bleach after she fell unconscious because ‘he didn’t want her to look a mess’.

Despite being significantly less intoxicated than his partner, Broadhurst had declined to seek help leaving her at the bottom of the stairs. He did not call for medical assistance until 9.30 the following morning.

In his address to Broadhurst, the sentencing judge summarised: ‘Despite her obvious injuries, you did not summon help. You just left her at the foot of the bed. You did not cover her up, get her a blanket or pillow. You left her flat on her back and left her.’ The trial heard that when Broadhurst called police operators the following morning, he described his deceased partner as ‘dead as a doughnut’.

In spite of these details, Broadhurst only received a sentence for gross negligence manslaughter and was sentenced to three years and eight months in prison. Commenting on the case, Harriet Harman MP condemned the use of the ‘50 shades of grey’ defence: ‘We cannot have a situation where men kill women and then blame those women for their own deaths.’

The so-called ‘50 shades’ defence operates to insinuate that as women were consenting parties to intercourse, and presumably to ‘rough’ intercourse, any concomitant violence was equally consensual. Legally, however, this is a misnomer. It is established law that individuals cannot consent to the infliction of bodily harm against themselves, whether during consensual intercourse or otherwise. Although victims can inflict bodily harm on themselves without committing an offence, this does not extend to involving another in such acts, a distinction established in 1993 when a group of men were found guilty of wounding and occasioning actual bodily harm (ABH) while engaging in consensual BDSM.

Despite this clear legal precedent, however, versions of the ‘50 shades’ defence have informally proliferated in the court system. In 2016, Hannah Pearson, a 16-year-old school girl, was strangled and killed by James Morton, eight years her senior, whom she had met that day.

Morton was described as being obsessed with strangulation, who frequently watched porn featuring strangulation. During the trial, the court heard that after the two got into bed, Morton began to lightly strangle her, which she did not object to, before strangling her forcibly for more than one minute, during which time she tried to gasp for air before she died. Pearson had been ‘heavily intoxicated’ when she was killed, while Morton was sober. The jury found Morton not guilty of murder but guilty of gross negligence manslaughter, and he was sentenced to 12 years in prison.

The difficulty in establishing a murder charge in these cases is often threefold: the problem with establishing causation; the categorisation of strangulation; and the troubled matter of consent, an embedded ambiguity in the law about sex, rough sex and rape.

In terms of the former, post mortem for Natalie Connolly concluded that she had died from a combination of her injuries and the potentially fatal level of alcohol and cocaine that she had consumed. This presented a challenge: for Broadhurst to be guilty of murder, his actions had to be the singularlydecisive cause of her death. Given this ambiguity, The Crown Prosecution Service were doubtful that the jury would return a murder verdict, and so lowered the charge to manslaughter. The CPS simultaneously allowed Connolly to have been so intoxicated it killed her, yet sufficiently sober to consent to sex.

The second issue is the categorisation of strangulation as a crime in itself. According to Women’s Aid, one woman on average is strangled to death by her partner every two weeks; yet strangulation assaults are not de facto classed as occasioning actual or grievous bodily harm. Instead, strangulation may be classified as battery, the least serious form of assault possible. While any assault during the course of consensual intercourse is unlawful, the normalisation of strangulation by men against women during sex has meant that prosecutors appear unwilling to press additional charges of assault occasioning grievous bodily harm or unlawful act manslaughter when it appears in cases, which could result in higher sentences.

The law is therefore in the anomalous situation where an attack on somebody which results in a victim suffering serious injuries could be charged as a grievous bodily harm, with a sentence that could exceed twenty years in custody, while Hannah Pearson’s killer who strangled her during sex without her consent and with a degree of premeditation was only imprisoned for twelve years. Meanwhile, Natalie Connolly’s killer could be released within two years.

More fundamentally, the ‘50 shades’ defence relies on the presumption that a woman who consented to rough sex consented for its duration, up until the point at which they died. In Natalie Connolly’s case, Broadhurst relied on the fact that the two had previously engaged in sadomasochistic sex. But although consent may be given, it may also be retracted and that retraction ignored. The website “We Can’t Consent to This,” established by Fiona Mackenzie following Natalie Connolly’s death, emphasises the point: women cannot, and surely do not, consent to their serious injury or murder at the hands of their partners, with or without BDSM.

In the words of the judge who ruled on Hannah Pearson’s case: ‘She had never been involved in such activity before, was very intoxicated and, if not totally unconscious, then certainly not thinking straight. She was in no position to object, trapped whilst you strangled her.’ Yet a manslaughter charge fails to recognise the perpetrator’s causal role in the woman’s death, and nor does it recognise the lack of consent at the moment of death, the violence, sexual assault, or rape.

Earlier this year a 52-year old German man Ralph Jankus used a Wartenberg Wheel, a spiked instrument normally used to diagnose nerve reactions, on his wife with such force that he perforated her bowel and she died of an internal haemorrhage. Despite a long history of domestic abuse, including testimony from Ms Jankus’ son that she would be assaulted for going to the hairdresser without permission, and the fact that Mr Jankus waited for four days while his wife bled to death before seeking medical attention, Mr Jankus only received a suspended prison sentence. Prosecutors in Germany declined to charge him with murder.

As Harriet Harman commented last week, ‘What an irony that the narrative of women’s sexual empowerment is being used by men who inflict fatal injuries.’ The more ominous problem is that the courts, under the guise of a legally false and evidentially unclear notion of ‘consent’ are enabling them to do so.