000 04879nab a22003377a 4500
999 _c8112
_d8112
005 20250625151635.0
008 230419s2020 -nz|| |||| 00| 0 eng d
040 _aAFVC
100 _aEdwards, Susan S. M.
_910244
245 _aConsent and the ‘rough sex’ defence in rape, murder, manslaughter and gross negligence
_cSusan S.M. Edwards
260 _bSage,
_c2020
500 _aJournal of Criminal Law, 2021, First published online, 24 July 2020
520 _aWhen women die at the hands of men, a not infrequent defence is that she consented to, or initiated, the beating, strangulation and penetration which contributed to her death. While strangulation has been a typical method of killing in male on female intimate partner homicide for many decades (‘thou little recognised), what has changed is men’s excuses for their violence. Excuses such as ‘She made me lose my self-control in an argument’ or ‘She was unfaithful to me’ are being supplanted by ‘She consented to rough sex’. Since the dead cannot speak, nor is there any property in the dead, the defendant’s tactic of impugning the deceased’s character cannot be easily rebutted, and he, while maligning her in this way, may profit from a lighter sentence. Law reformers, politicians, academics and activists are pressing for legal reform to shut down this misogyny. On 16 June 2020, during the Public Committee stage of the Domestic Abuse Bill, cls 4 and 5 were approved. Clause 4, ‘No defence for consent to death’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury. (2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter’. Clause 5, ‘No defence for consent to injury’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation. (2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter’. These two new clauses would prevent the alleged consent of the victim from being used as a defence to a prosecution in intimate partner homicides and non-fatal assault which result in s 47 assault occasioning actual bodily harm, Offences Against the Person Act 1861, or more serious injury. Additional new clauses including, proposing that consent of the Director of Public Prosecutions would be required, in the case of death, to accept a charge to anything less than murder (cl 6); the requirement to consult with the family of the deceased regarding charges (cl 7); the prohibition of reference to sexual history of the deceased in domestic homicide trials (cl 10); anonymity of victims of domestic homicide (cl 11); and anonymity of domestic violence survivors (cl 14); the Parliamentary Under-Secretary of State for Justice (Alex Chalk), while sympathetic, said there were difficulties with the clauses in their present form. Of the proposal to make non-fatal strangulation (cl 8) a standalone offence, he considered that ‘creating a new offence could limit the circumstances covered, and create additional evidential burdens’. These motions reflect the several debates since October 2019, when MPs, Harriet Harman and Mark Garnier, introduced the ‘No defence for consent’ amendment to the second reading of the Domestic Abuse Bill. Since men also plead the ‘sexual consent defence’ on ‘first dates’, which may fall outside the definition of ‘domestic abuse’ as set out in the Bill, a loophole also recognised by Alex Chalk at the Public Committee stage, 16 June 2020, this too will be addressed. The murder of Grace Millane, in New Zealand in 2018, murdered on a ‘first date’ provides such an example. (Author's abstract). Record #8112
650 _aATTITUDES
_970
650 _aCONSENT
_94690
650 _aCRIMINAL JUSTICE
_9167
650 _aEVIDENCE
_9237
650 0 _98292
_aFEMICIDE
650 0 _aHOMICIDE
_9297
650 0 _aINTIMATE PARTNER VIOLENCE
_9431
650 0 _aRAPE
_9488
650 4 _aSEXUAL VIOLENCE
_9531
650 _aSTRANGULATION
_94941
651 _aINTERNATIONAL
_93624
651 4 _aUNITED KINGDOM
_92604
651 4 _aNEW ZEALAND
_92588
773 0 _tJournal of Criminal Law, 2021, First published online, 24 July 2020
830 _aJournal of Criminal Law
_911817
856 _uhttps://doi.org/10.1177/0022018320943056
_zDOI: 10.1177/0022018320943056
942 _2ddc
_cARTICLE