The following article contains details of sexual assault, abuse and violence.
In recent weeks, the United Kingdom passed an amendment which essentially bans the “rough sex defence” in murder cases, a clause in the new Domestic Abuse Bill. Due to become law later this year, the movement to ban the defence has gained traction in recent months, labelled as an outdated, victim-shaming concept.
The “rough sex defence,” also dubbed the “50 Shades defence,” reduces horrific acts of murder and assault to the narrative of a ‘sex game going wrong,’ therefore implying the act was consensual.’ It has been criticised for allowing men to get away with murder and receive the lesser charge of man slaughter – severe asphyxiation, fractures, cuts and other acts of grievous bodily harm are legally perceived with less gravity because the woman ‘wanted it.” The UK organisation “We Can’t Consent To This” has spearheaded the movement to ban the “rough sex defence, and since 1972, the organisation has recorded 60 cases where this defence was used. The defence has led to the accused being found not guilty or receiving a manslaughter conviction – this has happened in 7 of the 17 killings where the defence was used in the last 5 years.
The use of the defence has increased exponentially since 2010, with a 90% increase in the last decade. However, it was the case of Grace Millane in 2018 that pushed the rough sex defence to the forefront of public discourse. Millane was a 21 year old British backpacker who was travelling in New Zealand, when she was murdered by a man that she met on Tinder. She was strangled to death, and the man who killed Millane insisted that Grace died accidentally due to an act of choking during consensual sex.
The accused was found guilty and charged for murder, but not before the defence attempted to justify the crime through presenting the jury with evidence of Millane’s sexual history. Millane is one of the many women who have died at the hands of a man under the guise of an “extreme sexual fetish” – the WCCTT website outlines their stories.
All of the cases which argue the “rough sex defence” involved a male perpetrator. The defence is inherently contradictory – it blames the female victim and attributes all of the responsibility of the act to her ‘wanting’ it, where the autonomy and rationality of the man is down-played. As Sian Norris for The Guardian puts it:
“Here we have increasing numbers of men blaming women for the fatal violence committed against them, suggesting women can somehow consent to their own deaths (which is legally impossible) while claiming they themselves cannot be held responsible.”
Furthermore, the sexual proclivities of the victims become the subject of tabloid gossip, especially in high-profile cases. In the Grace Millane case, her membership of BDSM websites and her experiences with past exes was covered by many media outlets, leading to criticism of the murder trial’s coverage. If this defence continues to be used, women continue to be defined by their past sexual experiences in the courtroom and operate on the premise that women experimenting sexually is something to be ashamed about.
The move to ban the ‘rough sex defence’ is a microcosm of how we view women’s sexuality, consent and sexual assault in today’s society. The ‘rough sex defence’ can also be used in rape cases, acting as a deterrent for women to come forward about their sexual assault out of fear that their past will be used against them. It represents a dated view of consent, that assumes that consent is black-and-white and neglecting the fact that it can be revoked at any point.
Conversations like these are important ones to be having during a time when rough and almost violent sex has become so normalised – consider the erotic movie 365 Days, which skyrocketed to the top of Netflix’s Top 10 the week it went viral on TikTok for it’s graphic and vivid sex scenes. TikTok does very little for age regulation, allowing kids as young as 13 to go on the app. The movie has received some backlash for the romanticisation for violent sex, but has further consequences when you consider that underage minors are exposed to it.
In shocking statistics published last year, it has been revealed that 1 in 3 British women experience unwanted choking, slapping or spitting during sex, with some even saying that modern sex norms are centred on dehumanising women.
The ban of the rough sex defence in the UK is a hallmark move, one that can be emulated by other countries where the defence has been successful, like Canada and America. However, the tendency of the press to hone in on a woman’s sexual history is representative of the culture surrounding victim-blaming in these cases. It also asks us to reconsider how women’s sexuality is being portrayed in the media we consume, which is often portrayed as one-dimensional and simplistic, denying women of their autonomy and complexity.
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