The group We Can’t Consent estimate that more than 60 women have been killed since 1972 by men who have used the so called ‘rough sex defence’. The ‘rough sex defence’ is not a specific defence, it is a denial of an intention to kill or cause really serious harm to the deceased which is the required state of mind for the prosecution to prove murder.
The ‘rough sex defence’ is usually a description for a defendant who claims the deceased died as a result of consensual, violent sex which ‘went wrong’ but that he had no intention to kill or cause really serious harm. It is often said by defendants in these cases that any injuries were caused accidentally. It has been used as an explanation with increasing regularity and, exclusively, by male defendants. The outcomes in cases where such an explanation has been used cover a broad spectrum including: no charges being brought, a guilty plea to manslaughter being accepted by the prosecution as a lesser alternative to murder, the defendant being convicted of murder.
A new clause has been added to the Domestic Abuse Bill which purports to address the use of the ‘rough sex defence’. A tightening of the law to make it more difficult to raise a defence of consent to violence during sex is a proper area for the legislative intervention of Parliament.
The clause sets out that it is not a defence that a person consents to the infliction of serious harm for the purposes of obtaining sexual gratification. It sets out that the legislation would apply to offences of grievous bodily harm or actual bodily harm. The law has placed longstanding limits on the cry of ‘consent’ amounting to a defence to assault.
The case law is clear: where actual or grievous bodily harm or a wound is caused, consent will be no defence in the absence of good reason (see R v Brown  2 WLR 556). The proposed legislation simply codifies what was already established at common law. This is acknowledged in the explanatory statement accompanying the clause.
The change in legislation could ensure that appropriate charges are brought when a death occurs during the course of violent sex but it is unlikely to change the outcome of murder trials where defendants maintain this defence. Consent is not a defence to murder. The proposed legislation does not alter the fact that the key issue for the jury to determine will usually be: what was the defendant’s intention? Did the defendant intend to kill or cause really serious harm to the victim? The jury do not necessarily have to resolve the issue of consent to reach a verdict.
The issue of consent may be relevant in assessing the defendant’s intention but it is not determinative. It is important to remember that a defendant’s explanation is not the only evidence in a trial. In these cases, as with all criminal trials, the jury hear evidence from a variety of sources and are provided with the context in which to assess the merits and plausibility of the explanation provided by a defendant. The nature and the extent of the injuries and evidence from a pathologist, for example, would undermine a false version of events provided by a defendant. Legislation cannot eradicate the use of this defence by defendants in murder trials. There is a simple reason for this: parliament cannot legislate to prevent defendants from advancing their explanation at trial of why they deny murder, however distressing that account may be.
The circumstances of these cases are, understandably, extremely traumatic for the friends and families of the deceased and it is not surprising that parliament have sought to find ways to alleviate this trauma. But there are more meaningful steps which could be taken to address the issues rather than simply restating the law. Legislation can help by closing the gap between the protection afforded to victims of sexual violence who survive, and those who do not. Some of the protections afforded to complainants in sexual offence cases could be extended to murder cases where a defendant maintains a ‘consensual violence’ defence: trial judges could provide further, detailed directions to juries about myths surrounding sexual violence and rape; the deceased could be granted anonymity; the long-standing, stringent protections available in other cases regarding the use of evidence of the previous sexual history of the complainant (s41 YJCEA 1999) could be adapted to apply in these cases as well.
These protections are less likely to grab headlines but are more likely to have a valuable and practical impact.