What Just Happened?
In a clause added to the Domestic Abuse Bill, on 6th July 2020, the House of Commons ruled out ‘consent for sexual gratification’ as a defense for serious harm caused to a person.[1]This would make it difficult for defendants in cases of sexual harm, rape or murder to take the defense that the offence occurred ‘accidentally’ in the course of sexual act that was completely consensual.
What Does This Mean?
Rough sex defense (also known as 50 Shades defense) has been used in a number of cases by defendants to establish that the woman sustained injuries or, in some cases, met her death when things ‘went wrong’ while they had consensual sex. This defense has shaped the judgments in ways ranging from acquittals to reducing murder charges to manslaughter.[2] The landmark case of R v. Brown established that ‘where actual or grievous bodily harm or a wound is caused, consent will be no defense in the absence of good reason’.[3] Some disturbing deaths of women in the recent past followed by the defendant taking up the ‘rough sex’ defense acted as a catalyst to the clause being put into the legislation. Moreover, the website ‘We Can’t Consent to This’ played a huge role in campaigning against the use of this defense logically stating that women can’t consent to their murder through the veil of a sexual act. They collected data to reveal that more than 60 women have been killed in violence that they were alleged to have consented to since 1972.[4]
This extreme variation of ‘she asked for it’ is disturbing to listen to not only because it defies and humiliates the rational decision-making capacity of women but also because in most cases the woman is not alive to rebut or justify her stance. The step by the Parliament is being lauded by feminists and human rights activists, but its overall objective is far from achieved. This is because ruling out the said defense, will probably play a role in placing the correct charges (for murder instead of manslaughter, for instance) on the defendant but it will not stop the defendant from arguing that they did not intend to kill.[5]
The jury while deciding in a murder trial will take into consideration whether there was mens rea involved in committing the said crime. The legislation cannot stop the defendant from taking the defense of ‘rough sex’ in a murder trial because that would impede their right to a fair trial. The defense would, however, not be conclusive and would have to be corroborated with other evidence to decide on an outcome to the trial. To give the credit where it is due, the aforementioned legislation is definitely a step forward in sending across the message that the people of United Kingdom are extremely sensitive towards the issues of women and sexual violence, and would not put up with a perpetrator getting away for consequences of their actions.[6] Moreover, this step speaks volumes on behalf of the victim and their families in conveying that ‘come what may, she could not have consented to that’.
Written by Neha Singh
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#StephensonsSolicitors #RaydenSolicitors #KingsleyNapley #IrwinMitchell #SlaterandGordon #SlaterHeelis
References:
[1] Domestic Abuse HC Bill (2019-21) [141], cl 20
[2] ‘Domestic Abuse Bill: MPs back ban on 'chilling rough sex defence’ (BBC, 6 July 2020) <https://www.bbc.co.uk/bbcthree/article/e3662eca-ded4-4d31-b728-1553cef7eae8> accessed 24 July 2020
[3] R v Brown [1993] 2 WLR 556
[4] Owen Bowcott, ‘‘Rough sex’ defence led to over 60 victims having to deny giving consent, finds research’ (The Guardian, 3 June 2020) <https://www.theguardian.com/society/2020/jun/03/rough-sex-defence-led-to-over-60-victims-having-to-deny-giving-consent-finds-research> accessed 24 July 2020
[5] Genevieve Reed, ‘New law seeking to ban ‘rough sex defence’ unlikely to change trial outcomes’ (The Justice Gap, 10 July 2020) <https://www.thejusticegap.com/the-so-called-rough-sex-defence-is-unlikely-to-change-the-outcome-of-trials/> accessed 25 July 2020
[6] HC Deb 6 July 2020, vol 678, col 746 <https://hansard.parliament.uk/commons/2020-07-06/debates/CEAE6941-5DC8-4F76-9377-3DE3ED0F3553/DomesticAbuseBill> accessed 26 July 2020
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