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I was recently asked by the BBC to give an expert opinion on issues that have arisen following the campaign "We Can't Consent To This". The campaign is seeking to have a defence of manslaughter removed from the statute book wherever a person (more often than not a man) is accused of killing a person during the course of "rough sex".  

I appeared on the Stephen Nolan show for BBC Radio 5 Live.  

The law on rough sex

The law in this area is clear already. 

The case of R v Brown has already established that a person cannot consent to anything more than "transient or trifling" assault during the course of sexual play or at all. 

Effectively something in the way of mild spanking or something that doesn't leave anything more than a bruise or so for a short period of time will be acceptable, but you cannot consent to anything that amounts to grievous bodily harm or of course death. 

The campaign seemed to heighten following the death of Grace Millane, a British Backpacker murdered in New Zealand having met someone following an encounter on Tinder. 

"What is rough sex?"

The first question has to be,

"What is rough sex?" There are plenty of BDSM participants who are careful about how they behave during the course of their consensual sexual activity where seemingly no harm comes to anyone. 

One of my fellow commentators on the programme said that of the 60 or so cases the campaigners have considered, showed that the majority of deaths in these circumstances arise where there has already been domestic violence within the relationship. 

Has violence during consensual sex become 'normalised'?

A recent survey conducted by Radio 5 Live found that more than a third of UK based women under the age of 40, who were interviewed had experienced unwanted, slapping, choking, gagging or spitting during consensual sex.  More than 2000 women were interviewed and were asked how often they had experienced acts like this and if they were always wanted or welcome.

38% had experienced acts that they said were unwanted at least some of the time.  31% said that it was never unwanted. 

'Rough sex gone wrong'

It cannot be and indeed isn't true to say that women who die in these unfortunate circumstances are necessarily the subject of domestic abuse in the first instance. 

Miss Millane was certainly not the subject of domestic abuse by her murderer, as she had only just met him. 

Her killer used the "rough sex gone wrong" defence in the course of his trial, albeit of course, he was unsuccessful. 

56% of women said that they never felt pressured into involving themselves in such acts. 

In a circumstance such as that, where someone effectively meets for sex, how does anyone know what medical conditions or other mental or indeed any other issues the person you are meeting may have?

Removing the defence of manslaughter?

Although it may seem extreme to many of us to want to be asphyxiated to get sexual pleasure, some people enjoy this type of activity. Therefore, provided they have reached the age of consent, are of sound mind and are not under the influence of alcohol or drugs to the extent that they do not know what they are doing at the time that the sexual activity takes place then it is a matter for them how they conduct their sex lives. 

Harriet Harman has added fuel to the campaigner's fire with her comments concerning the defence of manslaughter being removed as an option for the Crown Prosecution Service (CPS) to offer as an alternative to murder, should a man find himself in a position whereby his partner has died during sexual activity. 

This does not prevent a Defendant suggesting to the Court/Jury that the death of their partner was an accident. 

The Jury must decide whether or not someone was murdered.  They do this by listening to the evidence and then can make their own decisions as to whether there was intent to murder, whether there are acts of grievous bodily harm (GBH) that went too far or whether the death is accidental (albeit an extremely sad accident).

This cannot be taken away; otherwise, anyone charged with such an offence may as well take themselves to jail immediately and stay there for many years. 

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