Abstract
When 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 1 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’. 2 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 3 are pressing for legal reform to shut down this misogyny. On 16 June 2020, during the Public Committee stage of the Domestic Abuse Bill, 4 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. 5 Of the proposal to make non-fatal strangulation 6 (cl 8) a standalone offence, he considered that ‘creating a new offence could limit the circumstances covered, and create additional evidential burdens’. 7 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. 8 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, 9 a loophole also recognised by Alex Chalk at the Public Committee stage, 16 June 2020, this too will be addressed. 10 The murder of Grace Millane, in New Zealand 11 in 2018, murdered on a ‘first date’ provides such an example.
Introduction
In this article, I explore some of those cases where women have been killed or injured by intimate partners and ‘first dates’ following strangulation, beating, penetration with objects and rape, and where the defendant alleges that the victim consented to ‘rough sex’. I consider the current law on consent, first, within the context of the common law as it relates to criminal assault, following R v Brown, 12 (which the Domestic Abuse Act 2020, cls 4 and 5, when passed into law, proposes to limit) and, second, as laid down in statute as it pertains to sexual offences. I am also concerned to explore the conundrum which arises where admissibility of character evidence, of the victim, where when the index offence is deemed a ‘sexual offence’ (Sexual Offences Act (SOA), 2003, s 78) is governed by the Youth Justice and Criminal Evidence Act (YJCEA), 1999, s 41, yet where there is violent assault, strangulation and death otherwise deemed ‘non sexual’ offences (though the motive is sexual), the Criminal Justice Act (CJA), 2003, s 100, applies. It is suggested that the CJA, s 100, allows a greater latitude to the defence to engage in so-called ‘kite flying’ and sexual innuendo 13 about the victim and her ‘sexual history’ than when an offence is defined as ‘sexual’ and thereby governed by YJCEA, s 41. I am also concerned that where women are abused in this way the sadism inherent in the violence is rarely considered in an assessment of dangerousness or seriousness for sentencing purposes. Sadism is only expressly recognised in statute when considering minimum terms for mandatory life sentences (child cruelty excepted) 14 (CJA, s 269, sch 21(5)(2)(e)) and even here where defendants are convicted of murder, arising from intimate partner violence, a perusal of cases suggests that the ‘sadistic’ element is infrequently adduced as part of legal submissions at the sentencing stage. 15 Furthermore, where the verdict is ‘unlawful act manslaughter’ and ‘rough sex’ and consent arguments have been appropriated by the defence, sentencing disparities are considerable. There is further injustice regarding the final plea since when the defence alleges consent to ‘rough sex’, when the defence contests the unlawfulness of the act(s) and when the defence contests the proximate cause of death, the prosecution, in some cases, has accepted a plea bargain to gross negligence manslaughter (GNM) (see the death of Natalie Connolly below). The inappropriateness of GNM is obvious since such a finding refutes complicity, intention and recklessness, the only wrong committed by the defendant is a failure of a duty to act, to seek help and to protect. Sentencing here is bound by statutory guidelines, 16 and as illustrated in R v Bowler 17 and R v Broadhurst, 18 (the Connolly case), the sentences are often derisory. It was the ‘plea negotiation’ in Broadhurst which prompted Harriet Harman MP and Mark Garnier MP, during the Second Reading of the Domestic Abuse Bill, to table the amendment for a ‘no drop’ murder policy (cl 6) where a consent to ‘rough sex’ defence is adduced. (At this point of writing, it has not been accepted into legislation.)
What is clear is that legal reform on its own is not enough since defendant’s neutralisations of responsibility for sexual violence that blame women are echoes of the cultural representations of women’s insatiable desire for sexual violence redolent in misogynist film, advertising, fiction
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and journalism.
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Andrea Dworkin
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and Catherine MacKinnon
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have long argued that such representations provide the scripts for men’s sexual violence against women. These narratives are culturally determined, and a male-dominated society produces scenarios of female acquiescence. Such sexually coded tropes are transcribed into defences of domestic violence, rape and death and inform and shape the legal narrative which has, until now, resisted the feminist challenge. The courtroom has been transformed into a theatre of pornography where pain is rearranged as pleasure and where the tropes of pornography reverberate with the message that no matter what you do to a woman she will like it. Such thinking impinges on judicial reasoning and on legal method, such that this is not only a feminist issue, it is a justice issue and those who have a role in whatever form including in the cultural representation of women must take responsibility for this crisis and resist and silence this narrative. Dworkin’s prophetic warning, when speaking of pornography, in 1991, resonates even more poignantly at this moment. She said And if you want to continue to believe that this is a matter for debate instead of an emergency and a time for action, I want to tell you, how many women will die during the course of the debate you would like to have.
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Consent as Construed in Sexual Offences Versus Consent as Construed in Violence Against the Person
Where the law defines the violence as a sexual offence, as for example, rape, assault by penetration and indecent assault, consent is statutorily defined (SOA ss 74–76), and as stated earlier, special rules apply regarding the admissibility of character evidence of a victim/complainant (YJCEA s 41). However, where the offence is defined in law as non-sexual, that is, criminal assault and death, then ‘consent’ derives from the common law, and as stated earlier, admissibility of character evidence of the victim/complainant or deceased is governed by CJA s 100. A different approach to admissibility of evidence is adopted here merely because the index offence is contrived as non-sexual thereby potentially allowing sexual history to be adduced without s 41 limitation.
Concerning sexual offences, that is, rape (s 1), assault by penetration (s 2) and sexual assault (s 3), consent is set out in SOA s 74, ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. ‘Capacity’ requires mental and physical wholeness and autonomy; and freedom requires free will. The rebuttable evidential presumptions in s 75 assume capacity is vitiated particularly where there is violence, threats of violence and imprisonment. With regard to the interpretation of s 74 and especially s 75(2)(a) violence or threats of violence, and (c) unlawful detention, the new statutory provision in the Serious Crime Act 2015 s 76, which criminalises coercive control of a family member, is also relevant in construing the predicament of a victim of rape or sexual assault who submits or assents and whose free will is compromised. 29 With this in mind, the 2019 specimen direction guidance for judges in directing juries, 30 which distinguishes between ‘reluctant acquiescence’ and ‘unwilling submission’, may need revisiting. 31
Concerning criminal assault, while the state of mind inimical to a consent is not defined, the conduct considered unlawful vitiating any presumed consent is clarified following the dictum in R v Brown.
32
Here, the House of Lords held that consent cannot provide a defence to an assault that is more than trifling, invalidating a consent to Offences Against the Person Act (OAPA) s 47 and more serious offences, including when done or caused for the purpose of ‘sexual gratification’. In this case, a group of men engaged in sadomasochistic practices involving torture, wounding and branding to the buttocks, anus, penis, testicles and nipples. Following legal advice, they pleaded guilty to s 47 and s 20 assault. On appeal, against conviction, they contended that consent afforded a defence. The Court of Appeal did not agree and upheld the convictions, as did the House of Lords and the European Court of Human Rights.
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Lord Templeman said the court was not prepared to invent a defence of consent for the ‘indulgence of cruelty’.
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Lord Slynn said, ‘consent cannot be said simply to be a defence to any act which one person does to another. A line has to be drawn…’.
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The ruling has been criticised as paternalistic, discriminatory and homophobic.
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Concern over the homophobic bias resurfaced again following the decision in R v Wilson
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when the Court of Appeal quashed a conviction where a husband branded his initials on his wife’s buttocks with a hot knife (with her agreement). The court said, In our judgment Reg. v. Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted.…In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times in which we live
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, exceptions may arise from time to time not expressly covered by authority.
Reconstructing Sexual Offences as Consensual ‘Rough Sex’ and ‘Rape Games’
Male violence against female intimate partners and ‘first dates’ is frequently presented as consensual by defendants facing charges of rape, assault and homicide. It was once acceded that acts of violence accompanying rape provided incontrovertible and corroborative proof that consent was vitiated.
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In DPP v Morgan,
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the trial judge said: The crime of rape consists in having unlawful sexual intercourse with a woman without her consent and by force. By force. Those words mean exactly what they say. It does not mean there has to be a fight or blows have to be inflicted. It means that there has to be some violence used against the woman to overbear her will or that there has to be a threat of violence as a result of which her will is overborne….
Such fallacious presumptions about ‘her’ consent are increasingly relied upon, self-servingly, by men in defence submissions in criminal trials. How has this come about and would feminist judgments in these cases have resisted this brooding development?
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The disturbing picture I set out is incomplete as I cite, in the main, only those cases reported in the UK law reports, presenting a glimpse of this world. In R v Boyea,
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the victim …was trying to put her key in the front door lock, [and] was gripped from behind by the appellant (she had met in the pub earlier that evening). He pushed his way into the house…followed her into the bedroom…pushed her onto the bed…ripped off her underclothes…put his hand round her throat…lay on top of her and subjected her to an indecent assault…put his hand into her vagina and twisted it round inside.
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We would, however, say this. The court must take into account that social attitudes have changed over the years, particularly in the field of sexual relations between adults.…. we have no doubt that the extent of the violence inflicted on Miss Collins went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence. Moreover, it was inconceivable that she would have consented to the injuries which were in fact inflicted on her.
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In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause from the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.
Male perpetrators, in neutralising accounts, 52 frequently reconstruct their violence and control as ‘play fighting’ or a ‘rape game’. In DPP v Morgan (above), defending counsel said the defendants believed that the victim’s resistance was ‘play acting’. 53 In R v Coull, 54 the defendant, who was convicted of a series of rapes on several victims, spat into the mouth of one during what he said was ‘sexual intercourse’, because ‘she might like it since he had done that on previous occasions with other girlfriends’. In R v H(A), 55 the victim suffered bruising to the neck, thighs, loss of hair and rape. The defendant said he thought rape, choking and hair pulling was just ‘rough sex’. In texts sent between them, after the rape, and submitted by him as evidence, he hoped would minimise his conduct he said, ‘It was all a blur, you have got to laugh about it really’. In attempting to flatter and manipulate the victim and to imply that only a weak-minded woman would report the violence as rape, his texts read, ‘You are a strongminded woman…You’re a top girl’. In R v R (S), 56 the defendant taped the hands and mouth of the victim with duct tape and raped her. He too said it was ‘play fighting’. In R v Latimer 57 (see below), the appellant slapped the victim, punched her, choked her and repeatedly raped her. He said it was ‘rough sex’. In R v Lovell, 58 the defendant grabbed the victim by her throat, pushed, choked, slapped, dragged her by her hair, kicked and raped her. He said it was ‘rough sex’. 59 While s 21 OAPA applies where there is an ‘attempt to choke, suffocate, or strangle any other person…Thereby to enable himself or any other person to commit,…any indictable offence’, prosecutors rarely add this count to an indictment where strangulation or choking is committed in the course of rape.
Turning to an unreported case, on 11 March 2020, Andy Anokye 60 was convicted of 21 counts of rape (s 1(1) SOA), 5 counts of false imprisonment, 2 counts of assault by penetration (s 2(1) SOA) and 2 counts of assault (s 47 OAPA), in relation to four victims whom he imprisoned, coerced and subjected to rape and violence. He waterboarded his victims, used weapons, threatened and subjected them to other forms of sadism, including putting bleach on one victim’s face, telling another she would be shot and to another put her hand in water, and, bringing an electric toaster nearby, threatened her with electrocution. He said such acts were all ‘rape games’ and that it was just part of ‘the sex I have’ and blaming his victims, he said of one, ‘she was a willing and enthusiastic participant in my sex games/role play’. His counsel presented the defence case as ‘consensual sexual activity operating on a level playing field’ and said his victims were ‘independent, adult women’. 61
In some cases, the defendant attempts to legitimise the conduct by alleging that the victim initiated the violence. In R v D’Ambrosia,
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the defendant described rough consensual intercourse enjoyed by the victim which included violent rapes involving a knife and a bat. The defence said ‘it being the complainant’s preference for intercourse of that type, with which the appellant complied’ because she was a dominatrix, ‘whereas he was a mild, humble person’. In R v Latimer
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(above), the defendant made similar claims, suggesting ‘that she enjoyed rough sex, which he claimed made him feel uncomfortable’. There is also evidence that juries may be persuaded by defence claims that women have consented to ‘rough sex’ and return ‘not guilty’ verdicts. Steven Lock
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was charged with s 47 OAPA assault. The victim suffered bruising to the buttocks and neck. He chained her ‘like a dog’ to his bedroom floor and whipped her repeatedly with a rope. In his evidence, he said that he had got the idea from Fifty Shades of Grey.
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The jury returned a ‘not guilty’ verdict. It is not known how frequently jurors acquit in such cases, but certainly a presumption of jury acquittal impacts on a Crown Prosecution Service (CPS) decision to discontinue proceedings prior to trial. At the Public Committee stage of the Domestic Abuse Bill on 16 June, Jess Phillips MP reported that in one case brought to her attention by a solicitor, prosecutors declined to pursue charges against a man accused of sexual assault because of fears he would claim it was consensual sexual behaviour.…and said in a letter to the complainant, “A prosecution could follow in relation to this offence, but the courts have shown an interest in changing the law so that the suspect could say that you consented to these assaults. This would be difficult to disprove,…for reasons set out earlier in the letter…. If I prosecuted this offence it is likely to lead to lengthy legal proceedings in which the background to the case would have to be visited as far as the sexual practices that led to and accompanied the infliction of the injuries. In my opinion it is not in the public interest to pursue this charge.”
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The problem with consent only approaches to criminal law reform is that sex, under conditions of inequality, can look consensual when it is not wanted at the time, because women know that sex that women want is the sex men want from women. Men in positions of power over women can thus secure sex that looks, even is, consensual without that sex ever being freely chosen, far less desired.
Her Character on Trial—Sexual Offences, Consent and ‘Rough Sex’, s 41 YJCEA 1999
Where a defendant is charged with a sexual offence (defined in s 62 SOA) and alleges consent to ‘rough sex’, he may apply for leave to adduce character evidence of the complainant and YJCEA s 41(3)(b) applies. In R v A
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(a rape case), the position is set out by Lord Slynn: Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the giving of evidence and cross-examination about any sexual behaviour of the complainant except with leave of the court. Leave may be given where (a) consent is an issue and where the sexual behaviour of the complainant is alleged to have taken place ‘at or about the same time as the event which is the subject matter of the charge against the accused’ (s 41(3)(b) of that Act) and (b) where the sexual behaviour of the complainant to which the question or evidence relates is alleged to have been ‘in any respect, so similar’ to the sexual behaviour which is shown by evidence to have taken place as part of the event which is the subject matter of the charge or to any other sexual behaviour of the complainant which took place at or about the same time as that event ‘that the similarity cannot reasonably be explained as a coincidence’ (s 41 (3)(c)).
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However, in Kevin Oliver v HM Advocate, 71 the court took a different view. Here, the defendant was charged with rape, whipping, slapping, choking, all of which he described as consensual sadomasochistic behaviour. His application to adduce character evidence of prior acts between them (s 275 Criminal Procedure Scotland Act 1995, the rape shield provision) was refused. The judge ‘…was not satisfied that the detail of previous sexual activity was of sufficient probative value to be likely to outweigh protection of the privacy and dignity of the complainer’. This decision to refuse to admit such evidence was upheld on appeal.
Reconstructing Murder as ‘Rough Sex’ Gone Wrong
A finding of murder requires the prosecution to prove that there was an intention to kill or cause grievous bodily harm and that the defendant foresaw death or serious bodily harm as a ‘virtual certainty’. Where these elements are not satisfied, a defendant may be convicted of manslaughter or GNM (discussed below). When intimate partners and ‘first dates’ die, defendants allege that the death was an accident and, in some cases, that the deceased consented to ‘rough sex’, including beatings, strangulation, asphyxiation, choking and penetration with objects. In Niall Duncan McDonald v HM Advocate
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(convicted of culpable homicide), the appellant said he put his hands round the victim’s throat I inserted my finger and then got a leather whip that we have out of the bedside cabinet, on Mandy’s side of the bed. Then I inserted it vaginally, I think, followed by anally. At this point my arms were round Mandy’s throat because that’s the way we normally love sort of thing. …. he would put pressure on her windpipe during sex and would sometimes use a stocking tied around her neck, which he would pull from both sides…She allowed him to do such things because it made him happy, but she never enjoyed it herself.
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Her Character on Trial—Assault, Murder and Deceased Character Evidence s 100 CJA 2003
Where the defendant is charged with a non-sexual offence (assault, strangulation, choking, beating/murder/manslaughter) and relies on pleading consent and ‘rough sex’, the defence case is bolstered by inferring that the deceased had a propensity to engage in the kind of conduct which is in issue.
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Character evidence of a person other than the accused is regulated by s 100 CJA and admitted, (1) by agreement between the parties; (2) where the bad character evidence is important explanatory evidence; (3) where the bad character is of substantial probative value (s 100 (1)(b)(ii)) in relation to a matter which (a) is a matter in issue (s 100 (1)(b)(i)) in the proceedings, and (b) is of substantial importance in the context of the case as a whole having regard to s.100 (3).
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the court must have regard to the following factors (and to any others it considers relevant)—(c) (i) the evidence is evidence of a person’s misconduct, and (ii), it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct. If at a trial a person is charged with an offence of homicide in which domestic abuse was involved, then—(a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the deceased.
There is also the matter of the trial itself and while defending counsel must present the defendant’s case, however obnoxious, a line should be drawn to prevent collusion. Sir Michael Havers when defending Peter Sutcliffe who killed 13 women asked, ‘was this not a classic case of provocation?’ since Sutcliffe had said that he was angered when his first victim, who was a prostitute, said he was ‘fucking useless’ because he could not achieve an erection. 90 It is also to be noted that after the Grace Millane murder trial in New Zealand, the presiding judge, Justice Simon Moore responding to public criticism of defending counsel said that the defence case was ‘entirely proper’ and that counsel are required to put the defence case. 91
In McDonald
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(above) where physical injury had been inflicted on the deceased wife by partial manual strangulation and the forceful insertion of a rigid blunt instrument into her bowel, the defence made an application to admit evidence that the deceased had spoken to friends about her ‘interest’ in sexual matters and that the defendant and the deceased had an ‘adventurous relationship’. This application was rejected, as of no probative value, as was the defence submission of ‘no case to answer’. However, in R v Coutts
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(above), the defence was granted leave to adduce character evidence of the deceased in exploring the victim’s relationships. Here, Lincoln Abbots gave evidence that he was in a normal, non-deviant sexual relationship with the victim between 1996 and 1997, and a former teaching colleague of the victim, Ruth Davis, gave evidence of a ‘whispered conversation’ with the victim in the staff room. During that conversation, the victim indicated that her sexual relationship with Lincoln Abbotts (her boyfriend at the time) involved the intentional stopping of breathing or the cutting-off of breath.…In response to this evidence, Lincoln Abbotts stated in cross-examination that the topic of asphyxial sex was “categorically never raised” between him and the victim….
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Reconstructing ‘Rough Sex’ Gone Wrong as Unlawful Act Manslaughter
When juries do not convict the defendant of murder, in these circumstances, a finding of unlawful act manslaughter is returned when the jury are not satisfied that the prosecution has proved an intention to kill or cause grievous bodily harm. Such an outcome may indicate that the jury is influenced by the defendant’s claims that the deceased possibly enjoyed ‘rough sex’, and/or that the defendant did not intend to kill, and that death was an accident. Sentence length for manslaughter in such circumstances reflects, to some degree, the extent to which judges are persuaded by such defence claims.
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In R v Williamson,
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the defendant was convicted of manslaughter. He said that he and the deceased engaged in mutual asphyxiation and to heighten her sexual pleasure he had put a pillow on her face. He was sentenced to four years’ imprisonment and reduced to three following submissions made on his behalf that he and the deceased had been ‘deeply attached to each other’, that there had been no hostile intent on his part and that his plea of guilty to manslaughter was based upon his acceptance that what had happened had been the result of gross negligence amounting to criminality. Yet, the appellant had a long record of previous offences of violence. However, the court said they were not relevant to the ‘consensual practice aimed at giving pleasure’. (Upon release, Williamson went on to assault his next partner and to kill his mother).
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In R v Coates,
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the court said, One of his favourite sexual practices is paraphilia, which is the practice of asphyxiation for the purpose of sexual gratification. According to his ex-wife he had practised it on her on four or five occasions, on a consensual basis, as part of sexual foreplay during their marriage. This activity, according to her, had been his idea. …put a belt around the deceased’s neck which had an extra hole in it so that he could tighten it more than would otherwise be the case. He tightened the belt around her neck,…fractured her thyroid cartilage and killed her by asphyxiating her. He then made untrue prepared statements saying that the deceased had practised paraphilia;…. that she was responsible for putting the belt around her own neck and her death was an accident.
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maintained that all sexual activity, both vaginal and anal, had been consensual. Upon examination of the deceased, it was found that she had suffered numerous injuries to her vaginal and anal areas, indicative of repetitive and deep penetration. There were numerous bruises to her breasts, arms and thighs, suggesting the use of force by gripping, and an injury to her chin consistent with a forceful impact with the floor.
No Unlawful Act—‘No Crime’
Where the defence case is, that the act itself is lawful, that the victim consented to it and that the outcome of death was unexpected, the prosecution may decide not to bring any charges, 105 or, as in the following case, a ‘judge directed acquittal’ may follow. In R v Slingsby, 106 (Judge J) held that a charge of unlawful manslaughter could not be sustained, since no injury was intended or foreseen and no crime had been committed because the victim consented to all the acts, none of which were in themselves unlawful. The defendant claimed that sexual intercourse, anal sex and the penetration of the deceased’s vagina and rectum with his hand, ‘fisting’, was consensual. The deceased died of septicaemia from cuts caused by a signet ring on his hand. While the judge accepted the principle that infliction of bodily harm is unlawful, even if the victim consents (citing R v Boyea 107 ), the defence submission of ‘vigorous sexual activity’ and death caused by the coincidental fact of the signet ring causing internal injury was also accepted, such that judge withdrew the case of constructive manslaughter from the jury, the Crown offered no evidence and the judge directed an acquittal. 108 In cases characterised by a similar blend of circumstances, the prosecution may decline to prosecute. 109
Reconstructing ‘Rough Sex’ Gone Wrong as GNM
In cases resulting in death where ‘rough sex’ is alleged by the defence, the prosecution has also accepted a plea to GNM. It is this outcome which prompted the need to press for a ‘no drop’ murder prosecution policy, as proposed by cl 6, during the Public Committee stage of the Domestic Abuse Bill. 110 While GNM is increasingly being pleaded where, for example, D supplies a drug to V, and in relation to medical cases, its use in circumstances involving male intimate partner violence and death is untypical. GNM has been adopted, where a number of features confound the prosecution case including: where the defence contests that the act(s), albeit that they contributed to death, are unlawful, where there are problems of proof of causation and the proximate cause of death is contested (especially where there is intoxication), where the deceased’s injuries may possibly be caused by accidental falling and where the defence submits that the deceased consented to the assault(s). To establish GNM, there must be a duty of care. The defendant must be in breach of that duty and the negligence must have caused death in the opinion of the jury. That breach of duty must give rise to an obvious and serious risk of death.
No Unlawful Act—‘No Crime’
In R v Bowler (2015)
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(a case which involved two men), the deceased was allegedly consensually wrapped in cellophane and black plastic bags, fastened around in duct tape, which resulted in death. The defendant claimed that he and the deceased engaged in consensual sadomasochistic practices, in this case mummification. The judge conceded the allegedly consensual nature of the act and concluding that the act itself was not unlawful, albeit potentially dangerous, said: But of course what distinguishes the culpability in this case both from the cases of manslaughter by an unlawful act, such as those dealt with in Appleby, and from the cases of the neglect of a victim in the care of a defendant, such as Barrass and Reeves, or the gross negligence of a builder being paid to do work, such as R. v Johnson [2008] EWCA Crim 2976; [2009] 2 Cr. App. R. (S.) 28 (p.210), is that here the circumstances which led to this tragic death were expressly assented to by the victim as part of his achieving satisfaction.
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Determining Proximate Causation and Fault
Where the proximate cause of death is also contested, a conviction for GNM may also be the outcome. Jamie Nicholson (unreported) 115 was initially charged with the murder of Belinda Dalby. She was found dead with a ligature around her neck. Nicholson reported her death immediately to the police and said he must have killed her and must have put the ligature around her neck though he said he could not remember. Counsel for Nicholson said there was some suggestion that Nicholson and the deceased may have been ‘playing a sex game’ involving the ligature. Toxicology tests found high levels of heroin and cocaine in the deceased’s blood, and a post-mortem examination concluded that her death was caused by drug use. In this case, a not guilty verdict was recorded after the Crown Prosecution Service offered no evidence.
Getting Away With Murder—The Crown Against John Broadhurst
It is the case of John Broadhurst,
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convicted of the GNM of Natalie Connolly, that has been the catalyst in this press for legislative change. Natalie Connolly died as a result of …a combination of the alcohol level (acute alcohol intoxication) and the 40 separate physical injuries and resultant blood loss. The physical injuries included bruising to the head, a blow-out fracture to the left eye socket, internal bleeding and tissue haemorrhaging on the bottom and lower back. The insertion and/or the removal of the spray bottle had caused lacerations of the vagina which resulted in arterial and venous haemorrhage.
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…at the deceased’s request, the applicant hit her on the bottom and the lower back with his hand and then with a boot…and struck her breasts with his hand…. at Miss Connolly’s request inserted into her vagina a spray bottle containing carpet cleaner with a protruding plastic trigger mechanism. It became lodged in her vagina and the applicant was unable to remove it, he inserted his hand into her vagina and managed to extract the bottle, but broke parts of the trigger mechanism…. He saw that she was bleeding from her vagina’.…he left her, almost naked, lying on her back at the foot of the stairs and went to bed.
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The judge in addressing the difficulties presenting the prosecution in proving murder or unlawful acting manslaughter said, ‘I cannot be sure she was incapable of consenting to being beaten with a shoe’. He accepted that she instigated ‘being penetrated by the carpet cleaner bottle’ 119 and accepted, following R v Slingsby 120 that penetration with an object was not an unlawful act (albeit potentially dangerous) and said that a woman can consent to having something inserted into her vagina or rectum without it being unlawful. Although he did find that Broadhurst had caused most of the injuries to Miss Connolly’s breasts, bottom and lower back, which he found to be ‘actual bodily harm of quite a serious type’. The judge then withdrew the charge of murder and assault by penetration (s 2 SOA 2003).
The defence then offered a guilty plea to GNM which the prosecution accepted. The judge found that the duty of care to summon assistance had been breached and (constrained by sentencing guidelines) took five years and six months as the starting point which was reduced by one-third to reflect Broadhurst’s guilty plea. 121 (His renewed application for leave to appeal against a sentence of three years’ and eight months was refused.) He is due for release in September 2020 when he will have served half of his sentence.
Aspects of this case, including the acceptance of the plea, and the sentencing outcome, have been criticised as plea bargaining at its worst, since the prosecution anticipating a jury verdict of ‘not guilty’ to murder or manslaughter and being persuaded by defence submissions that (i) the cause of death may have been alcohol poisoning and not vaginal haemorrhaging, and (ii) that given the deceased’s ‘sexual character’ she consented, 122 then accepted a plea to GNM.
The Urgency of Law Reform
Parliament is presently reforming the law in this area. First, there is broad agreement that consent is no defence to s 47 assault or more serious injury or death (the proposed cls 4 and 5 amendments to the Domestic Abuse Bill). 123 That has, in law, in any event been the position since R v Brown 124 albeit that, in some cases, the defence has tried to suggest otherwise. My second point concerns the exercise of judicial discretion especially regarding the admissibility of character evidence where presumptions about women’s sexuality are exploited, and as Lord Hutton observed, ‘Issues of consent and credibility may well run so close to each other as almost to coincide’. 125 Regarding admissibility of evidence of the deceased’s character (s 100 CJA), then safeguards similar to the ‘rape shield’ provisions (s 41 YJCEA) must be introduced so that her character is not impugned. Parliament has not supported cl 10 in its current form which would shut down adducing any sexual history evidence altogether particularly bearing in mind the right of the defendant to a fair trial (art 6 ECHR). This takes me to my third point relating to the construction of fairness which I have already made in the body of this article suggesting that fairness is currently skewed in favour of the defence. Fourth, there is a need for judicial guidance regarding admissibility of character evidence of the victim, acceptance of plea and training in understanding the fallacy of gendered stereotypes and understanding how they inform the exercise of judicial discretion and affect assessments of ‘weight’ and ‘relevance and ‘probative value’ of evidence. It is to be noted that there is some judicial guidance (albeit limited) on curtailing gendered assumptions in rape cases (although only in relation to false accusation and delayed reporting). Judicial guidance in this area may assist judges in determining relevance (see McDonald above) and prevent the forays into the deceased’s character observed in R v Coutts and the Millane case. Such guidance may also restrain judges from inserting their own opinions and endorsements of defence assumptions in summing up (Slingsby above) where the judge referred to ‘vigorous sexual activity’ and said, ‘social attitudes are changing’. Fifth, there is also a need to restrain defending counsel from voicing sexual stereotypes to secure some advantage, especially when not put by the defendant. In Frazer Angus Neil v HM Advocate, 126 where the defendant said he couldn’t remember what he had done ‘The defence case was directed to the possibility that the appellant killed the deceased during consensual sexual intercourse involving the sexual practice of erotic asphyxiation’. This overstretching the mark is a matter for Bar Council Rules and ethics to consider with regard to gender presumptions and their impact on discriminatory practices and the repeated victimisation of the dead. 127 Sixth, regarding experts, their evidence should be confined to findings that do not stray into the ultimate issue which in some cases endorses prejudice and misogyny lending a veneer of pseudo-scientific credibility to myths about women’s sexual preferences. Dr Fintan Garavan a drug and toxicology expert, in giving evidence in the Millane case, referred to American literature on the vagaries of sexual congress and ‘what women want’ yet his remit was to give opinion on clinical findings on the body of Grace Millane. In this respect, he said as he found no evidence of a sign of struggle merely ‘pressure to the neck’, which he said was consistent with a consensual act. However, under cross-examination he acknowledged she might have been restrained and unable to fight. It is to be noted that no expert has been called in any of these cases to address the jury on male violence, control and force, on male sadism and misogyny or on what men do to women or on the prevalence of male violence. Seventh, regarding sentencing, while strangulation, choking, assault by penetration and rape are all humiliating, degrading and sadistic, ‘sadism’ as an aggravating factor appears only in s 269 sch 21 CJA regarding sentencing for murder 128 and (sentencing guidelines in children cases, above). Since sadism is a feature in many of these cases, it should be a recognised aggravating feature in sentencing considerations in all non-fatal and fatal cases. Eighth, prosecutors concerned that jurors may not convict where the defence alleges the victim consented to ‘rough sex’ of the kind which resulted in death or serious injury should not accept a lesser plea and should proceed on a merits-based approach 129 not on a crystal ball prediction of jury outcome. Ninth and finally, prosecutors should be encouraged to add as routine practice a s 21 OAPA count to the indictment where strangulation or choking is committed while committing another offence. There is much to be done if this gross injustice is to be estopped, but any new provisions must be implementable, workable, no loopholes and no inconsistency with other legislation. Shutting down these avenues of legal misogyny means shutting down the way in which women are constructed both within and outside the law. At last, the moral will is on the side of the right, and feminist judgments are making the difference. 130
Footnotes
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This footnote has been updated from the originally published version.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
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