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Women’s organisations and senior lawyers have begun to look more closely at the use of ‘rough sex gone wrong’ as a defence to sexual crimes in the courtroom. Many have proposed a change in the law, following the discovery by researchers of a tenfold rise in the use of the argument in UK courts in cases where women have been killed.

Thirty UK women have died in the past decade following what was allegedly violent but consensual sexual activity. Of these cases, 17 resulted in a murder conviction, nine in a manslaughter conviction and two men were acquitted.

The use of ‘rough sex gone wrong’ in criminal defence cases

‘Rough sex gone wrong’ is not an official legal defence in UK law. However, it has been used to influence or negotiate with prosecutors to reduce a charge from murder to manslaughter, or to persuade the judge to impose a lesser sentence.

The primary concept in rape cases, that of consent, is deemed to be no defence to injury or death. In the 1993 House of Lords case R v Brown, a group of men were convicted of assault and wounding, even though everyone involved had willingly participated in the sadomasochistic violence. However, the consensual sexual violence argument is increasingly finding its way into defence strategies in such cases heard today. 

Director of End Violence Against Women, Sarah Green, said:

“Women monitoring femicides in the UK believe the so-called ‘rough sex defence’ is growing. It is deeply alarming, and at worst reflects the fact that defence is, actually, a business where some are willing to ‘test’ approaches that might win in court.”

Changes to the law have been put forward by MPs Harriet Harman and Mark Garnier. The changes to the Domestic Abuse Bill would incorporate the principles set out in R v Brown into legislation.

Barrister and lecturer at the University of Buckingham, Professor Susan Edwards, also believes that incorporating strangulation as a stand-alone offence should be considered. Strangulation is, in fact, the cause of around one-third of all deaths in spousal homicide cases.

This is in contrast to 30 years ago, where the most common argument in spousal homicide cases was that of provocation. This cultural shift makes it unclear as to whether there has been a significant rise in deaths by strangulation during sexual activity or whether the argument of consent to violent sexual activity is simply being used more often in homicide cases.

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