With its use criticised in cases like Grace Millane’s, criminology lecturer Dr Samantha Keene outlines the many reasons why the ‘rough sex’ defence is so problematic.
Internationally, concerns are being raised about the increasing use of the “rough sex gone wrong” claim in courtroom defences to murder. Campaigners at We Can’t Consent To This point to 60 UK women killed by men who claimed the women were “consenting” parties to the violence. Previous trials demonstrate these claims are successful and can result in lesser charges, lighter sentences or, most recently, no prosecution at all.
The rough sex defence has been used in New Zealand, perhaps most famously in the trial of Grace Millane’s murderer. The Millane trial dominated news headlines both here and around the globe, with rough sex a key aspect of the case. Millane’s murderer claimed she had initiated rough sex, consented to it, and her subsequent death by strangulation was a tragic, unexpected and unforeseen accident.
Rough sex was also a key question in a case against a Palmerston North man accused of rape and assault. In this case, whether “rape” or “consensual rough sex” had occurred was the key question in the trial. The man and woman had experimented with role-playing during sex and had a safe word. The defence focused on the fact the safe word was not verbalised, despite the woman reporting she was hit, choked and raped. The woman said she pleaded for him to stop and even vomited during the encounter. Despite these claims, the jury found he had reasonable grounds to believe she was consenting due to their prior history of engaging in rough sex. He was found not guilty of rape and assault several days later.
This week, the UK justice minister told MPs the “rough sex gone wrong” defence will be outlawed in new domestic abuse legislation. Due to become law later this year, the bill would make the rough sex defence inexcusable, and clarity around proposals for change will be provided in the coming weeks. In light of these changes, should New Zealand be following suit?
At the conclusion of the Millane trial, the officer in charge, Scott Beard, slammed the use of the rough sex defence and said it should not be able to be used in court. Some legal experts opposed such a position, claiming that because defendants are innocent until proven guilty they have the right to defend themselves in any way possible, regardless of the consequences of that defence.
The rough sex defence is worrying for several reasons. The defence is a remarkably gendered one, as it is overwhelmingly used by men against women. When the rough sex defence is used as a defence to murder, the woman has no ability to respond and witnesses are not often present. This is not dissimilar to many sexual violence cases, which become characterised by “he said, she said” scenarios. In defence to murder, however, the only voice presented is his. The scenario simply becomes “he said” she consented.
The rough sex defence results in a range of negative consequences for victims and their families. It encourages discussions about women’s previous sexual histories, as in the trial of Grace Millane, which can ultimately work against them. If women have previously expressed their sexuality in a particular way, even with a different sexual partner, this can be used as evidence of her interest in particular types of sex and the likelihood she would have consented to such practices.
The defence is a harrowing ordeal for victims and their families, with victims’ sexual histories laid out for the public to see. Introducing this evidence serves to make a suggestion about the type of woman the victim was, drawing on wider sexual double standards that see women shamed for their sexual conquests while men are heralded for theirs.
Lastly, the rough sex defence relies on subjective understandings of what counts as rough sex, despite it being an ill-defined concept. Women’s magazines frequently state women enjoy rough sex and should try it to please themselves and their partners. Mainstream pornography may fuel this as it frequently eroticises aggression and rough sex, often depicted through behaviours such as “choking” and “spanking”. These acts are depicted as consensual and pleasurable in pornography and rough sex has become a sort of culturally acceptable, expected form of sex. However, we know little about how people understand it or where the line is drawn between “rough” and “violent” behaviours. Given New Zealand’s alarmingly high levels of violence against women generally, we need to know more about this phenomenon.
There are many issues with the rough sex defence and we should watch the changes in the UK closely. But we also need to take a step back and think about rough sex more critically. We need to know more about how it is understood, how different people define it, where the appeal comes from, and how consent is actively negotiated and communicated when it occurs. We know that when people consent to rough sex they are not consenting to murder, but what we don’t know is what “counts” as rough sex in the first place.