A defence used in court to justify the death of a woman during sex is set to be banned in the new domestic abuse legislation, justice minister Alex Chalk told MPs in the House of Commons yesterday.
The 'rough sex' defence - also known as the 'sex game gone wrong' defence - has been used to defend perpetrators accused of murder in court more than 60 times in the UK since 1972, according to data compiled by campaign group We Can't Consent To This.
The Domestic Abuse Bill, which has been in the pipeline since 2018 but has suffered numerous setbacks due to Brexit and other issues, is due to be enshrined in law later this year. MP Alex Chalk told his fellow members of parliament:
"It is unconscionable for defendants to suggest that the death of a woman is justified, excusable or legally defensible because that woman had engaged in violent and harmful sexual activity which resulted in her death, simply because she consented."
Currently, if accepted by the court, the 'rough sex' defence could result in a minimised charge (and therefore sentence). According to We Can't Consent To This, 45% of the 60 cases they highlighted resulted in a "lesser charge of manslaughter, a lighter sentence or the death not being investigated as a crime at all".
As Jess Phillips, Labour's shadow minister for domestic violence and safeguarding, pointed out at the Commons' Public Bill Committee yesterday, it's unacceptable that when a woman is dead, "she can't speak for herself", yetneu it's entirely possible for a man charged with killing her to "simply say she wanted it".
"The law should be clear to all - you cannot consent to serious injury or death, but the case law is not up to the task," Phillips said.
Perhaps the most recent example of the 'rough sex' defence being attempted in court (albeit not a UK court) was in the case of Grace Millane. The British backpacker was killed by a man she went on a date with, but in his murder trial late last year he insisted that Grace died accidentally, as a result of choking during consensual sex.
The defence presented evidence in court to suggest the young woman had previously experimented in asphyxiation during sex. While the jury ultimately found the as-yet-unnamed man guilty of murder - and not manslaughter, as his legal team asserted - it was no doubt distressing for Grace's family to see her sexual history manipulated in such a way to try to excuse murder.
Earlier this month, Prime Minister Boris Johnson backed up the intention for the 'loophole' defence to be scrapped, saying: "We are committed to ensuring that the law is made clear and that defence is inexcusable."
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