Domestic Deaths and the 'Rough Sex' Defence

*TW before reading this article*

Activists would be forgiven for believing the Domestic Abuse Act 2021 abolished the rough sex defence (often referred to as the ‘Fifty Shades of Grey’ defence). Indeed, politicians advocating in parliamentary debates for the outlaw of this defence triumphed the success of this legislature. Home secretary, Priti Patel, thanked relative MPs for their ‘relentless campaigning’ to prohibit the use of this defence. However, has the Domestic Abuse Act 2021 in fact succeeded in outlawing the rough sex defence, or do victims still receive little to no justice following their death?

‘We Can’t Consent To This’, an active campaign group, record an approximate figure of 60 women in the UK that have been murdered, or severely injured, from their sexual partners. As illustrated in case-law, these relationships can range from one-night stands, long-term partners, or former partners. Nonetheless, every victim’s last sight remains the harrowing eyes of their violent, sexual partner. It is imperative to explore the severity of this issue and urge further reform to provide justice for victims.

What is the ‘rough sex defence’?

Critiquing the political twitter storm, ‘The Secret Barrister’ illuminated the glaring loophole that remains in the Domestic Abuse Act 2021, noting that the Government, in fact, achieved very little in this legislation. The legislature merely codifies the existing common law principle established in R v Brown, namely, one cannot consent to serious harm. Indeed, Lord Templeman acutely noted in Brown that consent of this nature would ‘glorify’ cruelty. Contrary to the title, the ‘rough sex’ defence is in fact, not a legal defence. Rather, the essence of the ‘rough sex’ defence is based on the defendant’s intent. The defendant (often, male, as statistics have proven this defence is highly gendered) argues the deceased victim had a proclivity for rough, violent sex. As such, failing to fulfil the requisite intent for murder of killing with ‘malice aforethought’. Ultimately, case-law indicates defendants often receive very lenient sentences, or in some instances, no punishment whatsoever.

The Victims

Traditionally, the provocation defence (subsequently abolished in 2010) enabled defendants to receive a mitigatory sentence based on the loss of control. Justice for Women referred to the provocation defence as the ‘nagging and shagging’ defence, as the mitigatory defence was often utilised by men to argue they were provoked by their partner by infidelity or arguing. Notably, the ‘nagging and shagging’ defence allowed Thomas Corlett to receive a mere three-year sentence for the murder of his wife, as the defendant was ‘provoked’ by the victim moving the mustard pot to the wrong side of the table.

As established, the ‘nagging and shagging’ defence has now been abolished. However, this familiar line of reasoning has entered the modern judicial system through the rough sex defence. The earliest recorded case involved a mother, Carole Califano, aged 28 at death in 1972. Peter Drinkwater, the victim’s partner, injected Califano with 5 anaesthetics as, allegedly, a formation of the victim’s request for ‘erotic practices’. Drinkwater informed the court that the victim attained ‘perverted sexual desires’. Despite the defendant’s previous violent charges, including cruelty and assaults to his former wife and killing a man, Drinkwater was cleared of murder and sentence to 12 years for manslaughter.

Propelling a recent public interest, the high-profile homicides of Natalie Connolly and Grace Millane encouraged the British Government to introduce the Domestic Abuse Act 2021. Natalie Connolly, aged 26, suffered 40 injuries and was left to die at the bottom of the stairs in her home. Broadhurst, the victim’s partner, inserted a carpet cleaner can (including a trigger) into the victim’s vagina. Upon removal, the trigger broke causing lacerations in the victim’s vagina and haemorrhages. Notably, the victim fell down the stairs when Broadhurst left the room to collect lubricant to remove the carpet cleaner, causing additional bleeding and an injury to her head. Broadhurst noticed the excessive blood and admitted to spraying bleach on the victim’s face to clean the blood. He phoned the police services the following morning to record that Natalie was ‘as dead as a doughnut’. The defendant proposed that violent, rough sex was the victim’s request, and her death was a result of an unfortunate sexual malpractice. Accepting this reasoning, the court issued a sentence of a mere 3 years, 8 months imprisonment to the defendant irrespective of the harrowing details of the case.

Grace Millane, aged 21, was found buried in a shallow grave in the mountains, her body contained in a suitcase. Embarking upon a year abroad, Millane met Jesse Kempson for a date arranged on an online dating app. CCTV captured Millane and Kempson entering Kempson’s hotel at approximately 9:40pm that night – the last time Grace was seen alive before she was strangled to death. Kempson argued in court that the strangulation incurred was of Millane’s request, despite purchasing a suitcase, shovel, cleaning products and hiring a car to dispose of her body. Indeed, the defence relied on the victim’s internet history and previous sexual history to strengthen this narrative. On this occasion, the jury rejected the rough sex defence, and the defendant was convicted of murder.

MPs lobbied to cease the use of the rough sex defence following the deaths of Natalie Connolly and Grace Millane, subsequently leading to the introduction of the Domestic Abuse Act 2021. One may wonder – why has this legislation failed to achieve the objective of prohibiting the rough sex defence?

Section 71(3) of the Domestic Abuse Act 2021 provides a list of offences that the Act will not grant ‘consent to serious harm for sexual gratification not a defence’ as offences under sections 18, 20 and 47 of the Offences Against the Person Act 1861. Evidently, the Domestic Abuse Act 2021 does not outlaw the rough sex defence in cases of murder and misses a pivotal opportunity to reform the law. Further enriching this point, Sam Pybus received a mere 4 year, 8 month imprisonment in September 2021 (importantly, after the enactment of the Domestic Abuse Act 2021) for strangling Sophie Moss to her death. Pybus argued the strangulation incurred by the victim were a consensual, albeit accidental, practice, actively encouraged by the victim.

This blog details a mere four cases of homicides involving the rough sex defence. In the UK alone, there are a further fifty-six cases. The issue remaining in the legal system is not the issue of consent, as often portrayed in the media. The issue is the defendant’s intent. We must continue to advocate for the reform of the law and cease the use of the rough sex defence.

https://www.gov.uk/guidance/domestic-abuse-how-to-get-help

Written by Laura Martin

Sources

Priti Patel’s tweet: https://twitter.com/pritipatel/status/1278361627939819523?lang=en-GB

The Secret Barrister: https://thesecretbarrister.com/2020/07/03/the-truth-about-the-governments-claims-to-have-ended-the-rough-sex-defence/

Gendered Violence: https://www.worldbank.org/en/topic/socialsustainability/brief/violence-against-women-and-girls

Provocation defence: https://www.legalfeminist.org.uk/2020/10/30/timothy-brehmer-from-coercive-control-to-loss-of-control/#:~:text=It%20was%20referred%20to%20by,provoked%20them%20to%20kill%20her.

For further detail on the victims, please see: https://wecantconsenttothis.uk/