The Domestic Abuse Bill – Decimation of the “Rough Sex” Defence?

June 2, 2020

By Caroline Abraham

The long-awaited domestic abuse bill (“the bill”) recently debated at second reading proposes to extend protection to victims of domestic abuse.

The bill seeks to provide, for the first time, a statutory definition of domestic abuse. It also proposes pilot mandatory polygraph examinations on high risk domestic abuse offenders as a licence condition and re-visiting the fear/distress test to be eligible for special measures in the criminal courts, to name a few.

What is, perhaps, a key feature in the debate of the bill is the necessity to combat the use of the “rough sex gone wrong” defence in cases of murder or serious injury.

It is right that the current case law is such that a person cannot consent to violence that leads to serious injury or death (Brown [1994] 1 AC 212 and M(B) [2018] EWCA Crim 560: a person’s consent to masochistic sexual activity is not a defence to actual or grievous bodily harm nor murder). There is technically no such thing as a “rough sex” defence.

Despite this, a Defendant is not prevented from establishing that there was consent when the victim is not alive to assert the contrary. Inevitably, in these types of cases, the victim is put on trial and often blamed for her own death where violence and domestic abuse is tidied into a neat package of rough sex, to make it more acceptable.

The bill sets out to address the shift in societal change, where violence of this nature has become normalised by pornography and social media. Of note, BBC research found that a third of UK women under 40 have experienced unwanted slapping, choking, gagging or spitting during consensual sex.

In 1996 two women were killed or injured where Defendants alleged consensual rough sex; by 2016 that number was 20, a tenfold increase.  Of the 2016 cases, nine men were convicted of murder, nine convicted of manslaughter and one case resulted in no conviction. The inference is that Defendants who assert the “rough sex” defence do so because there is a perception it is effective.

This area of criminal law is complex, the proposals in the bill are therefore welcomed as they offer clarity and curtail inadvertent loopholes or uncertainties in the law that can be exploited by those perpetrating crimes.

The need for this bill and what could become landmark legislation could not be greater, particularly in light of the multiplication of domestic abuse during the Covid-19 pandemic, in order to keep women safer in relationships in the future.

Caroline Abraham is an experienced criminal practitioner who has been briefed to appear and advise, on behalf of the prosecution and defence. Caroline joined Exchange Chambers as a tenant in December 2019.