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The abuse of the "rough sex" defence

Posted at 13:03 on 5 Dec 2019 by Pandora / Blake

Tags: BDSM, erotic asphyxiation, in the news, kink acceptance, law, media, violence against women

There's been some worrying stories going around about defendants in murder trials trying to get lighter prison sentences by claiming that the murder was just "rough sex gone wrong".

In New Zealand, 21 year old British backpacker Grace Millane was killed while on a Tinder date to celebrate her 22nd birthday. She messaged her friends to say she was having fun, but later that night her date killed her by "pressure to the neck". 

He told jurors it was an accident during consensual kinky sex. But after she was dead, he searched online for ways to dispose of the corpse - and then went straight out on another Tinder date. After Googling for large duffel bags, suitcases and car hire, he later shoved her body in a suitcase and buried it in the forest.

He's been found guilty of murder after a three week long trial, and has been sentenced to a minimum of 10 years without parole.

During the trial, feminist campaigners expressed concern about the use of "consensual rough sex" as a defence in a murder trial.

Campaigning group We Can’t Consent To This has published details of 59 British women killed by men who claimed their deaths were as a result of violent – but consensual – sex. 

"45% of the time, this claim in a homicide defence results in a lesser charge of manslaughter, a lighter sentence, or the death not being treated as a crime at all. And in the last 5 years, it's worse, with 50% success in "sex game" claims." (tweet)

This is the second time I've seen a news story in which "consensual rough sex" was claimed by a killer to try and lessen his sentence. 

Multi-millionaire John Broadhurst left his domestic partner Natalie Connolly injured and bleeding to die at the foot of the stairs while they were both drunk and high on alcohol and cocaine. She had suffered more than 40 injuries. The trial took place a year ago, and he was found guilty of manslaughter by gross negligence for failing to get medical help for her, and sentenced to three years and eight months imprisonment. He was originally tried for murder, but was cleared by the jury and admitted manslaughter.

The case came back in the news  recently when Broadhurst appealed his sentence, trying to get it reduced. His appeal was unsuccessful.

I was disheartened to read that campaigners from the "Counting Dead Women" campaign are trying to blame pornography for "increase" in violent sex. Because of course men never battered women and tried to get away with it before the internet came along. *eye roll*

In the trials of the killers of Natalie Connolly and Grace Millane, the court was told about their sexual preferences. Connolly told witnesses that she and Broadhurst had an interest in masochistic sex. A former boyfriend of Grace Millane said she had a presence on BDSM dating sites and had allowed him to choke her during sex. He testified that she was experienced around issues of consent and safety when practising BDSM. 

In a statement read out in court, he said they had used a system of safe words and tapping signals to make sure she was never in danger, or if she wanted asphyxiation to stop.

Erotic asphyxiation is one of those kinky activities which is often highlighted as "too risky" to be acceptable - and yet, many people continue to do it. Sex educator Jay Wiseman goes so far as to say (controversially) that EA is fundamentally different from other BDSM practices in its potentially fatal nature, and that there are no effective harm reduction measures to make it safe. (source)

Despite this, recreational choking continues to be something enjoyed by unknown numbers of kinksters - and indeed I've happily done it myself on a number of occasions, both as a bottom and as a top.

Based on her ex partner's testimony, it seems highly probable that Grace Millane knew how to look after herself as well as possible while engaging in "risk-aware" consensual erotic asphyxiation. She knew how to use non-verbal safewords and tapping signals. It's possible that her killer was careless, or clumsy, and accidentally restricted her breathing for just long enough. But after reviewing the evidence of his state of mind and intentions at the time, the jury ruled that it wasn't a simple accident, and convicted him of murder.

These cases are horrible. The defendants were carelessly violent, reckless, malicious or all three. 

Liking masochistic sex doesn't mean you like being battered and left to die, and it doesn't mean your killer should get away with it.

I'm reminded of the way that women's sexuality is often used to victim blame them in rape trials. She's a slut, she was asking for it, she slept around, she was so up for it she was unrapeable. This kind of slut-shaming is misogynistic - you don't see promiscuity weaponised against men in the same way. When it results in acquittals or reduced sentences in rape trials, it props up a culture that normalises and accepts rape.

Consent isn't an on/off switch. It's not like you consent to choking, or being punched, one time and therefore you've consented to being choked or beaten to death. Consent is informed, conditional, revocable and specific. What the victims liked to do therefore seems irrelevant in these cases, because there is absolutely no evidence that they wanted to die. 

It deeply concerns me that killers are using "consensual rough sex" as a defence to try and reduce their sentences. If they ever succeed, it's insulting when consensual BDSMers don't enjoy legal immunity regardless of the evidence for consent. Consent is still not a valid defence in court if actual or grievous bodily harm takes place - never mind murder. If the "consent defence" is resulting in more lenient sentences for perpetrators of non-consensual crimes, that's a disgusting double standard.

It concerns me that campaigners are capitalising on this trend to try to toughen up the law against consensual BDSM, claiming that that no-one can consent to BDSM, and all violence is the same. This shows a gross misunderstanding of how consent works, and risks criminalising hundreds of thousands of individuals who enjoy a bit of recreational injury, and aren't doing anything that either of them would describe as damaging. The BDSM community upholds stringent standards around safety and consent, and doesn't deserve to be scapegoated for the actions of violent killers who violate consent.

For a while, I've considered whether I should campaign to change the law around consent and assault, so that if it can be demonstrated that the victim did consent, the assault is legal. But it's a thorny ethical area. We already see the difficulty in prosecuting domestic violence cases, when the victim refuses to testify against their abuser - either out of fear, or because they are dependent on their abuser for something they want or need more than their own safety, such as access to their children, financial support, or their migration status. If assault becomes legal as long as the victim testifies they consented to it, doesn't that put abuse survivors in an even more vulnerable situation, and make it even harder to bring abusers to justice?

I don't have the answers. 

I appreciate that some people play extreme games, and take risks, and that any resulting legal case must be tragic and complex. But it seems to me that these two cases both involve a reckless ignoring of boundaries, and the continuation of violence without reference to consent. That's not BDSM by any definition I recognise.

(I also appreciate that for some people, murder is the ultimate erotic taboo, and there have been cases of consensual erotic murder pacts. But that's not what we're looking at here, and frankly that's a whole different kettle of legal and ethical worms.)

I think that it's possible to condemn reckless battery and murder without condemning consensual BDSM. If male killers of sexual partners - and so far in the cases I've read about, they are all male, I'm afraid - are being given overly lenient sentences, that may well indicate a cultural problem which we need to address, although each case must be examined on its own merits. The devil is in the details. 

Here's what Myles Jackman has to say on the matter:

Jackman has found the Millane case troubling in part due to what he believes are misunderstandings around the area of consent, which can lead to victim-blaming and even criminalising women for their sexual desires.
Unlike Harman, Jackman says that, as a “fact-specific defence”, the claim that someone died during or following “rough sex” should be put to a jury to determine intent. But he adds that, worryingly, much of the surrounding narrative appears to be demonising women for engaging with such practices at all. (Myles Jackman for Huffington Post)

It's cynical of killers to claim that their victims consented to the acts that lead to their death, when the victims are too dead to say otherwise. And it's cynical of anti-BDSM campaigners to throw consent out of the window in their eagerness to see killers brought to justice. 

Cross-posted from Patreon. Get cool rewards while supporting my writing and kink advocacy here.


Thanks for this insightful post

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