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Rejecting The ‘Rough Sex’ Defence: An Example of Overcriminalization Or A Necessary Normative Statement?
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Content Warning: This article discusses domestic abuse, sexual violence and murder, and contains information that readers may find disturbing.
The United Kingdom Parliament enacted section 71 of the Domestic Abuse Act 2021 (DAA 2021) following widespread media and political debate over claims by defendants to homicide charges that death resulted from consensual “rough sex gone wrong.” In stating that a victim’s consent to the infliction of serious harm for the purposes of sexual gratification is not a defence to specified offences in the Offences Against the Person Act 1861 (OAPA 1861),[1] the provision largely codifies previous case law preventing the use of consent as a defence to injury including and above actual bodily harm.[2] Consequently, it is vulnerable to previous feminist and queer criticisms of overcriminalization. This article will evaluate section 71 by considering these critiques and contrasting them with concerns over domestic abuse and the “euphemising” of such violence by the “rough sex” claims. It will conclude that section 71 is a necessary normative statement to counter these narratives. However, its limited scope is unlikely to respond to domestic abuse more generally, or the gendered narratives that pervade the criminal justice system. Consequently, it must be accompanied by further reform to meet these purposes.
I. THE DOMESTIC ABUSE ACT 2021
Defending murder by claims of “rough sex gone wrong” is not a modern phenomenon. Research suggests that such claims were made in 1970s murder trials.[3] However, this issue attracted international media attention with the murder of Grace Millane. She was strangled by a man she met through Tinder while on holiday in New Zealand. The man was convicted of her murder in November 2019. Despite taking steps to dispose of her body after her death - though not before taking intimate photographs of her and watching explicit pornography - the defendant argued that it was a case of consensual “rough sex gone wrong.”[4] A similar death happened in the UK in 2018 when Natalie Connolly was killed by her partner after suffering more than 40 injuries. His claim that he did not intend to kill her, with the injuries inflicted during consensual rough sex, was accepted by the Crown Prosecution Service through his guilty plea to manslaughter.[5]
The campaign group We Can’t Consent To This was established in response to Natalie’s death. The group’s research revealed a growing prevalence of the “rough sex” defence from 2010 onwards, focusing on 67 cases in which the defence was raised.[6] The defence is not automatically successful; conviction rates in the study seemed to broadly reflect national patterns for homicide indictments and convictions.[7] Yet their concerns were shared by Members of Parliament in the UK, who pushed for a statutory rejection of the “rough sex” defence.[8] The result was section 71 of the Domestic Abuse Act 2021. Where a defendant is charged with an offence contrary to sections 18, 20, or 47 of the Offences Against the Person Act 1861, it is not a defence that the victim consented to the infliction of serious harm for the purposes of sexual gratification.[9] “Serious harm” is defined as grievous bodily harm, wounding, or actual bodily harm, as within the meaning of the above offences.[10] Section 71 thus represents a codification of the previous common law rule, discussed next.
II. CONSENT IN THE COMMON LAW
A. Codification of the Law on Consent
The leading case for the relevance of consent to injury is the UK case R v Brown (1994).[11] The defendants were a group of homosexual men who freely consented to and engaged in sadomasochist acts with each other. None of the participants complained to the police or requested medical care because of injuries. Rather, prosecutions were only brought following an unrelated police investigation in which the police discovered videotapes depicting consensual same-sex BDSM activities between the defendants. Notwithstanding the victims’ consent, the defendants were convicted of various offences contrary to OAPA 1861.
The majority held that where actual bodily harm or above is intended or caused, the victim’s consent is irrelevant, unless there are good reasons in the public interest for the infliction of the injury that are recognised as an exception.[12] Stated exceptions included surgery, ritual circumcision, tattooing, piercings, and certain sports such as boxing. These exceptions are considered either to have discernible social benefits (for sports or religious rituals), or to be unreasonable to criminalise when consensual (for tattooing and piercings).[13] In contrast, consensual acts falling outside these recognised exceptions are seen as lacking social value, requiring the law to discourage these activities.[14] Thus, even where the basic activity in consensual rough sex is protected from any criminal sanction, “the entire activity is reframed as prima facie violence and is thus subject to criminal prohibition.”[15]
B. A ‘Rough Sex’ Exception?
If it is impossible to consent lawfully to harm above actual bodily harm, it may seem unclear how the “rough sex” defence (which relies on the victim’s consent to the activities) could operate. If a victim cannot consent to actual bodily harm, they cannot consent to serious harm or their own death.[16] To understand how the “rough sex” defence may operate in the homicide context, it is worth breaking down the offence of murder. Murder is a common law offence which requires the prosecution to prove two elements. First, the prosecution must prove that the defendant unlawfully caused the death of a human being (“actus reus”).[17] Second, they must prove that this was accompanied by an intention to cause either death or grievous bodily harm (“mens rea”).[18]
As Bows and Herring point out, the “rough sex” defence may be applicable to either of these elements. First, it may be that there was no unlawful act causing death, as the act was lawfully consented to. However, as Bows and Herring also note, this is unlikely to succeed, given the restrictive categories in Brown. Rather, the claims are more likely to target the second element; as any violence was in the context of “rough” but consensual sex, the defendant may claim he did not intend to cause death or grievous bodily harm. The central issue is not that the victim consented, but that death or injury resulted from a scenario in which, according to the “rough sex” narrative, he lacked the requisite mens rea.[19]
III. SEX, CONSENT, AND (OVER)CRIMINALISATION
This debate over the “rough sex” defence may be situated within a broader legal and societal debate over BDSM. The reasoning in Brown and the subsequent case law has been criticised heavily for relying on homophobia and disgust of BDSM to privilege certain sexual expression over others. Arguably, given that section 71 codifies this ruling, it is vulnerable to the same critiques as the common law cases.
Theoretical approaches to criminalisation generally suggest that at least two criteria must be met: (1) that the conduct at issue is wrongful, and (2) it is necessary to employ the criminal law to condemn or prevent such conduct.[20] Legal moralism has been suggested as an approach to determine what conduct is “wrongful.” However, it has come under criticism for its circular definition: that conduct is immoral if considered immoral by most people. Critics of legal moralism argue that immoral conduct, by itself, is not sufficient for criminalisation unless accompanied by harm.[21]
On this approach to criminalisation, Brown has been strongly criticised for using the notion of “potential harms” from BDSM activities to pass judgment on the immorality of the defendants. While some assert that Brown is overtly homophobic,[22] others contrast the tone and language of the decision in Brown to subsequent decisions involving heterosexual couples. Lord Templeman decried the activities as ‘dangerous and degrading’,[23] while Lord Lowry asserted that sadomasochistic activities between homosexual couples ‘cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare in society.’[24]
This language can be contrasted to the judgment in R v Wilson (1997) reviewing a husband’s prosecution for branding his name on his wife’s buttocks with a hot poker. After drawing an analogy of the activity not to violence but to tattooing, rejecting any erotic association, Lord Russell remarked that “[c]onsensual activity between a husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.”[25] Thus, Khan argues that the reference to a (at that time, necessarily heterosexual) marital home “sanctif[ied] sadomasochism by situating it within the bounds of marital heteronormativity.”[26]
It must be admitted that Brown has been applied to uphold convictions relating to heterosexual relationships as well. In R v Emmett (1999), the defendant had tightened a plastic bag over his girlfriend’s head before he engaged in oral sex with her, leading to her inability to communicate her distress and potential loss of consciousness. In another incident, he poured lighter fluid on her breasts before setting them alight, causing severe third-degree burns. The courts upheld his convictions under OAPA 1861. Even so, Dipika Jain and Kimberly Rhoten have compared the lower sentencing in Emmett to Brown to support a heterosexual bias, arguing that “[h]eteronormativity seems to bring some legitimacy to practices otherwise deemed uncivilized or perverted.”[27]
Yet even if a distinction between homosexual and heterosexual pairings is exaggerated, the resulting case law continues to support criticisms of a “normative sex” hierarchy.[28] In her rewritten judgment of Brown for the Feminist Judgments project, Mackenzie highlights the long-standing criminalization of sexual relations outside of penetrative intercourse between a man and a woman who are married to each other.[29] BDSM has been particularly stigmatised, only removed from the Diagnostic and Statistical Manual of Mental Disorders in 2013.[30] This stigma can be seen directly in Brown, through Lord Templeman’s depiction of BDSM as “degrading,” commenting that “[p]leasure derived from the infliction of pain is an evil thing.”[31]
Furthermore, the courts’ subsequent references to Wilson, in seeking to reject the reasoning of marital privacy, continue to support a ‘normative sex’ characterisation. In R v Dica, the Court of Appeal allowed the defendant’s appeal to his conviction under section 20 OAPA 1861 for reckless transmission of HIV on the grounds that consent should have been put to the jury. In doing so, Judge LJ drew a distinction between Wilson, where there was a risk that harm would be caused, but was not desired, and Brown and Emmett, where harm was intended for the purpose of sexual pleasure.[32] On this rationalisation, then, “[e]roticism makes a difference.” [33]
Overall, the reasoning in Brown itself and subsequent authorities seeking to rationalise the rule have engaged in a “normative sex” hierarchy, privileging certain sexual behaviours and sexual partners in law and stigmatising those outside a heteronormative model. As such, this line of authority is severely vulnerable to criticism from queer and feminist perspectives.
IV. DOMESTIC VIOLENCE: THE LAW’S NORMATIVE ROLE
Yet even if the underlying reasoning behind the Brown rule is open to criticism, it does not follow automatically that the rule itself should be rejected. This previous criticism must be balanced against obligations to prevent and protect against domestic abuse; the latter points in favour of maintaining and enacting section 71.
A. Competing Characterisations of Consent
Critiques of Brown do not suggest that consent should be used as a carte blanche. Mackenzie’s reimagined judgment affirms that the courts must find real consent rather than merely apparent consent, but that in doing so, must not equate consensual role play for sexual pleasure with violence inflicted without consent.[34] Yet this assertion overlooks the difficulty in drawing such a distinction given current understandings of both domestic abuse and sadomasochism.
The legal framework on domestic abuse in the UK has moved towards understanding interpersonal violence through the lens of “coercive control.” Coercive control is understood as a course of behaviour designed to control another party.[35] Section 76 Serious Crime Act 2015 criminalizes “controlling or coercive behaviour” between two individuals who are “personally connected.”[36] Such concepts are echoed in relation to BDSM. Marianne Canadian novelist Marianne Apostolides defines sadomasochism as “involv[ing] a highly unbalanced power relationship,” where the essential component is “the knowledge that one person has complete control over the other.”[37] This similarity is particularly worrying given the role of sexual violence in many abusive relationships. Sexual violence is a key component of the Duluth “power and control” wheel.[38] Alongside physical violence, sexual violence “reveal[s] the behavioural spokes” significance as part of a coercively controlling strategy of domination’, demonstrating to the victim what will happen if she does not comply with her abuser’s demands.[39] As such, there is a clear risk that claims of consensual BDSM may in fact be disguised domestic abuse.
Herring argues that this risk may well have been realised before the courts already, arguing that the unquestioned characterisation of Wilson and Emmett by legal textbooks and academic articles as BDSM cases “shows the ease with which a case of domestic abuse can be presented as sadomasochism.”[40] The queer and feminist critiques Wilson discussed above do not question the analogy to tattooing per se, but rather as evidence of a heteronormative bias. Yet branding “seems like the nadir for an abuser seeking the ultimate control over his spouse.”[41] Indeed, references to the inappropriateness of criminal investigation in the marital home echo the “marital privacy” rhetoric used by common law courts to afford legal immunity to abusers.[42]
Similarly, ostensibly feminist critiques of Emmett have accused the court of painting “a bleak picture, one colored by injury and largely devoid of the ongoing sexual interaction, and romantic relationship between the woman participant and the man defendant as a cohabiting couple.”[43] Yet as Herring points out, the incidents in Emmett do not resemble standard BDSM procedure. Furthermore, given that the victim refused to give evidence, the court had only the defendant’s word that his actions were fully consented to.[44] Criticism of Wilson and Emmett focuses on that the prosecutions were only brought after reports to the police by the women’s doctor in breach of medical confidentiality, rather than a complaint from the victims themselves.[45] Yet as Bows and Herring point out, one of the few reasons justifying such a breach is a fear of ongoing domestic abuse.[46]
These competing and contested characterisations support Herring’s conclusion that at the very least, the courts should exercise caution before “accepting an argument that the case is one of BDSM” rather than domestic abuse.[47] Indeed, it is not self-evident that the two are mutually exclusive. As Palmer and Wiener point out, “[a] sadistic rapist may, for example, use physically aggressive sex to hurt and dominate his partner and because he is sexually aroused by doing so.”[48] Arguably then, advocating for “real consent,” without engaging with “the reality of unequal power relations between men and women” and “ignor[ing] the ways in which this imbalance is institutionalised in the substance, procedure and practice of criminal law, is to affirm and legitimate male domination.”[49]
B. Gendered Discrepancies of Domestic Abuse and BDSM
While domestic abuse is not experienced exclusively by women, UK studies show that it is gendered in its prevalence, nature, and consequences.[50] According to the latest statistics, women represent 73% of victims in domestic abuse-related crimes, and 76% of victims of domestic homicides.[51] Although evidence on participation in BDSM is more limited generally, available studies similarly suggest gender discrepancies in participation.[52] More concerning are statistics suggesting that all too often, consent to “rough sex” is absent or taken for granted,[53] with a third of men in one study admitting to having slapped, choked, gagged or spat on their partner without first asking for consent.[54]
Given this context, the potential operation of the “rough sex” defence is extremely concerning. In We Can’t Consent To This’s examination of 67 cases raising a consent defence, 60 of which had a female victim, strangulation was the most common cause of death.[55] Strangulation is a heavily gendered method of killing: it isthe primary method of killing a female partner in a heterosexual relationship.[56] Yet it is a method of killing easily susceptible to a “rough sex” narrative, as Part II, above, explains.
The mens rea requirement for murder is intention to kill or intention to cause grievous bodily harm.[57] Intention focuses on the defendant’s state of mind, and can be found in two ways: (i) direct and (ii) oblique intent inferred from foresight. Under the direct or “core” sense of intention, a defendant intends a result if he acts with the purpose of bringing it about. Duff presents a test of failure for purposive intent, finding that the defendant has the purpose of bringing about a result if he would consider it a failure if it did not happen.[58] Under the second sense of intention, a defendant will intend a specified result if it is a “virtually certain” consequence of his actions and he appreciated this was the case, even if it was not his purpose to cause this result.[59]
As Susan Edwards points out, instances of strangulation may be subverted by a “rough sex” narrative such that the requisite intention is not found.[60] When strangulation occurs during sex, a defendant will reject suggestions that his purpose was to cause injury, as opposed to sexual pleasure. As strangulation does not always result in death, it cannot be assumed that death or grievous bodily injury was a “virtually certain” consequence of the defendant’s actions.[61] Instead, strangulation is routinely presented as “pressure” or “squeez[ing]” of the neck,[62] with the consequences that such conduct is more likely to be considered accidental or reflecting “careless disregard.”[63] This susceptibility of strangulation to a “rough sex” narrative, the heavily gendered distribution of this method of killing, and the risk that claims of BDSM in fact serve to disguise domestic abuse all support retaining the rule in Brown to protect victims of domestic abuse.
C. Normative Benefits of Codification
Even if the rule in Brown should be retained, it does not follow automatically that it should be codified. Codification engages other concerns of overcriminalization, given the tendency of the UK Parliament to enact statutory criminal law in a piecemeal fashion through statutory instruments, with little attention paid to the guiding principles of criminalization. Stevenson and Harris identify this problem as “accretion,” where the “inexorable spread” of criminal liability injects uncertainty into the criminal justice system, reducing its effectiveness and affecting its integrity. This is particularly an issue for criminal law, resulting in it becoming “not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it.”[64]
Though this broader context should be considered, several normative benefits of codification can be identified. First, by placing the rule on a statutory footing, section 71 ensures that it will still be applied even if the underlying reasoning in the case itself can be criticised.[65] Second, statutory law may be particularly well-placed to respond to the “euphemising” effect of the “rough sex” narrative. Feminist theory uses the term “euphemising” to refer to a technique where male violence is labelled and presented in a “misleading way such as to obscure the seriousness or responsibility of whoever has committed it.”[66] The phenomenon is particularly concerning in homicide cases, given that the victim is unable to give evidence or challenge the defendant’s account. Edwards notes that this permits the defendant to present an unchallenged narrative of sexual desire, relying on broader cultural scripts about women and sexuality to present his victim as an enthusiastic and willing participant.[67] As such, the “rough sex” defence permits defendants to “disguise what is essentially cruel and misogynist conduct” as BDSM.[68]
An alternative and related “euphemising” effect of the “rough sex” defence is the shift from the defendant’s action to his victim’s sexual history and reputation. After Grace Millane’s murder, her sexual history was “raked over the coals,” with tabloid headings focusing on her alleged requests for BDSM practices and unquestioningly repeating her killer’s claims.[69] This shift may have particularly problematic consequences in the courtroom.
In the context of sexual offences, academic research has highlighted the prejudicial effects of sexual history evidence. Although generally prohibited, section 41(3) Youth Justice and Criminal Evidence Act 1999 allows for the admission of “similar fact evidence,” permitting evidence of similar sexual behaviour between the complainant and the defendant or other parties. McGlynn criticises the effects of broad interpretations of this provision, highlighting the “twin myths” of credibility and implied consent.[70] Not only does sexual history evidence suggests that prior consent makes consent more likely, failing to recognise that consent must be given afresh for each encounter,[71] it also permits a new form of “moral credibility” challenges. By shifting the focus of the trial from the defendant to the complainant, sexual history evidence likewise shifts legal and moral blame to the complainant, “normaliz[ing] rape into sex.”[72]
By contrast, there are no procedural limitations on the use of sexual history evidence in homicide cases involving alleged consensual sex. Yet the above concerns apply with equal or greater force in this context. In an article advocating for the concept of “chronic sexual violation” to recognise better interpersonal sexual violence,[73] Palmer highlights the case of F v DPP, in which F sought to challenge the decisions not to prosecute her husband for rape.[74] Despite all three key parties recognising the “broader dynamic of control and unequal power” between F and her husband,[75] the defendant’s repeated prior use of violence during sex was interpreted instead as evidence of F’s consent to an alleged incident of rape, rather than as evidence of this abuse.[76] This reflects concerns discussed above on the ease at which domestic abuse may be disguised as consensual “rough sex,” particularly given how sex itself can be used as a tool of domestic abuse.[77]
Arguably, codification may counteract the “euphemising” effect of the “rough sex” defence. In the context of domestic violence more generally, the UN Special Rapporteur on Violence against Women has noted that prosecutors may act as “the ‘mouthpieces’ of society”, where “strong statements condemning violence against women” through prosecution can lead to changes in socio-cultural norms.[78] The passage of section 71 reinforces to not only prosecutors that claims of “rough sex” should not be taken at face value, but to wider society as well. In this way, codification may have normative benefits beyond merely ensuring the rule in Brown continues to be applied from this statutory basis.
D. Domestic Abuse and Law Reform: The Broader Picture
Even if section 71 may have these normative benefits, justifying its enaction, its limitations in responding to domestic abuse must be considered within the broader picture of law reform needs. Section 71 has a narrow ambit, only applying to the use of the “rough sex” narrative as a defence to certain offences. The law should equally target the perpetration of domestic abuse in this way, not merely its punishment. The introduction of an offence of non-fatal strangulation by the DAA 2021, given the specific issues with strangulation discussed above, is a welcome start.[79]
The fact that section 71 merely codifies the common law rule also highlights further concerns for law reform to target. Even where the rule in Brown continued to be good law, the “rough sex” defence was able to gain some level of validation in the courtroom, arguably due to continuing cultural tolerance of domestic abuse and violence against women. As Bows and Herring note, any reform relating to the “rough sex” defence must be part of a wider comprehensive package, aiming to change the cultural scripts and narratives used to blame women for violence inflicted on them.[80] These narratives are not created by virtue of Brown being a common law rule rather than statutory law;[81] the transformative potential of codification is therefore limited. As they conclude, ‘there is a widespread assumption among too many men that women like it “rough” and consent to rough sex/SM can be taken for granted. Law reform should be focussed on challenging that assumption.’[82]
CONCLUSION
In conclusion, section 71 does not represent an instance of overcriminalization, but is a normative statement needed to respond to the “pandemic” of domestic abuse in the UK.[83]
By codifying the rule in Brown
preventing the use of consent as a defence to injury including and above actual bodily harm, section 71 ensures that this rule will continue to be applied independent of its oft-criticised reasoning. Although queer and feminist concerns of overcriminalization do have merit in critiquing the case law for its homophobic implications and hierarchy of “normative sex,” such perspectives fail to consider the prevalence of domestic abuse and the competing characterisations of violence in this context. From this light, section 71 acts as a necessary normative statement to counter the “euphemising” effect of the “rough sex” narrative, emphasising to prosecutors, police, and wider society that domestic abuse must not be disguised by these claims. However, codification of this rule will not suffice to respond to domestic abuse more generally, given gendered narratives on violence and sex that pervade the criminal justice system and wider society. Further law reform will be needed to target the underlying causes of domestic abuse, rather than merely punishing those who perpetrate this violence
[1] Domestic Abuse Act 2021, s71(2)-(3).
[2] R v Brown [1994] 1 AC 212.
[3] We Can’t Consent To This, ‘What can be consented to?’ (February 2020) <;, accessed 13 October 2022.
[4] Eleanor Ainge Roy, ‘Grace Millane murder: man jailed for life for killing UK backpacker’ The Guardian (Auckland, 20 February 2020) <www.theguardian.com/world/2020/feb/21/grace-millane-man-jailed-for-life-for-killing-of-uk-backpacker>, accessed 13 October 2022.
[5] R v Broadhurst [2019] EWCA Crim 2026, [2019] 11 WLUK 634.
[6] We Can’t Consent To This (n 3).
[7] Hannah Bows & Jonathan Herring, ‘Getting Away With Murder? A Review of the “Rough Sex Defence”’ (2020) 84 JCL 525, 527.
[8] Owen Bowcott & Jamie Grierson, ‘MPs try to ban ‘rough sex’ defence in domestic abuse bill’ The Guardian (28 April 2020) <www.theguardian.com/society/2020/apr/28/mps-to-try-to-ban-rough-sex-defence-in-domestic-abuse-bill>, accessed 13 October 2022.
[9] DAA 2021, s71(2), (3).
[10] ibid, s71(3).
[11] Brown (n 2).
[12] ibid.
[13] Bows & Herring (n 7) 528.
[14] ibid 528-29.
[15] ibid 529.
[16] R v Wacker [2003] 1 Cr App R 329.
[17] Coke, Institutes of the Laws of England (1797).
[18] R v Cunningham [1957] 2 QB 396.
[19] Bows & Herring (n 7) 529.
[20] Herbert L. Packer, The Limits of the Criminal Sanction (SUP 1968).
[21] Joel Feinberg, The Moral Limits of the Criminal Law: Volume 1: Harm to Others (OUP 1984), 215-216.
[22] Lois Billings & Peter Alldridge, ‘Sexual Expression, Body Alteration, and the Defence of Consent’ (1993) 20 J Law & Soc’y 356, 358.
[23] Brown (n 2).
[24] ibid.
[25] R v Wilson [1997] QB 47.
[26] Ummni Khan, ‘A Woman’s Right to Be Spanked: Testing the Limits of Tolerance of SM in the Socio-Legal Imaginary’ (2009) 18 Law & Sexuality: Rev Lesbian, Gay, Bisexual & Transgender Legal Issues 79, 106.
[27] Dipika Jain & Kimberly Rhoten, ‘A Queer-Feminist Analysis of BDSM Jurisprudence in Common Law Courts’ (2022) 27 Berkeley J Crim L 87, 115.
[28] ibid 132.
[29] Matthew Weait & Rosemary Hunter, ‘Commentary on R v Brown’ in Rosemary Hunter, Clare McGlynn and Erica Rackley (eds) Feminist Judgments: From Theory to Practice (Hart Publishing 2010) 241, 248.
[30] Jonathan Herring, ‘R v Brown (1993)’ in Philip Handler, Henry Mares and Ian Williams (eds), Landmark Cases in Criminal Law (Hart Publishing 2017) 333, 343.
[31] Brown (n 2).
[32] R v Dica [2004] EWCA Crim 1103, [2004] QB 1257.
[33] Bibbings & Alldrige (n 22) 362.
[34] Weait and Hunter (n 29) 248.
[35] Herring, ‘R v Brown (1993)’ (n 30) 347.
[36] Serious Crime Act 2015, s76(1)-(2).
[37] Marianne Apostolides, ‘The Pleasure of the Pain: Why Some People Need S & M’ (1999) 32 Psychol. Today 60, 61.
[38] Ellen Pence and Michael Paymar, Education Groups for Men Who Batter: The Duluth Model (1st edn, Springer 1993).
[39] Tanya Palmer & Cassandra Wiener, ‘Telling the wrong stories: Rough sex, coercive control and the criminal law’ Family Law (11 February 2022) <www.familylaw.co.uk/news_and_comment/telling-the-wrong-stories-rough-sex-coercive-control-the-criminal-law> accessed 28 November 2022.
[40] Jonathan Herring, Criminal Law: Text, Cases and Materials (8th edn, OUP 2018) 383.
[41] Herring, ‘R v Brown (1993)’ (n 30) 349.
[42] Reva B Siegel, ‘The Rule of Love: Wife Beating as Prerogative and Privacy’ (1996) 105 Yale LJ 2117.
[43] Jain & Rhoten (n 27) 130.
[44] Herring, ‘R v Brown (1993)’ (n 30) 348.
[45] Jain & Rhoten (n 27) 113.
[46] Bows and Herring (n 7) 533; General Medical Council, Confidentiality (GMC, London 2009).
[47] Herring, Criminal Law (n 40) 384.
[48] Palmer and Wiener (n 39).
[49] Weait and Hunter (n 29) 243.
[50] Bows and Herring (n 7) 526
[51] Office for National Statistics, ‘Domestic abuse victim characteristics, England and Wales: year ending March 2021’ (24 November 2021) 2.
[52] Bows and Herring (n 7) 533.
[53] ibid.
[54] George Mair, ‘Over two-thirds of men under 40 have slapped, choked, gagged or spat on partner during sex, BBC Scotland doc finds’ The Scottish Sun (23 March 2020) <thescottishsun.co.uk/news/5415762/rough-sex-bbc-scotland-partner-men> accessed 17 October 2022.
[55] We Can’t Consent To This (n 3).
[56] Susan Edwards, ‘The Strangulation of Female Partners’ (2015) 12 Crim LR 949, 950.
[57] Cunningham (n 18).
[58] R.A. Duff, Intention, Agency, and Criminal Liability (Blackwell 1990)
[59] R v Woollin [1991] 1 AC 82.
[60] Susan Edwards, ‘The strangulation of female partners’ Crim LR 2015, 12, 949-966
[61] ibid 953.
[62] ibid 954; R v Ellerbeck [2010] EWCA Crim 905.
[63] ibid; R v Francom [2001] 1 Cr App R 18.
[64] R v Chambers [2008] EWCA Crim 2467 at [64], per Toulson LJ.
[65] Bows and Herring (n 7) 535.
[66] Patrizia Romito, A Deafening Silence (Policy Press 2008) 45.
[67] Susan Edwards, ‘Assault, Strangulation and Murder – Challenging the Sexual Libido Consent Defence Narrative’ in Alan Reed, Michael Bohlander, Nicola Wake and Emma Smith (eds), Consent: Domestic and Comparative Perspectives (Routledge 2016) 88-103.
[68] ibid 2.
[69] Sian Norris, ‘‘Rough sex’ as a defence for murder is grotesque victim-blaming’ The Guardian (24 February 2020) <www.theguardian.com/commentisfree/2020/feb/24/rough-sex-defence-murder-grace-millane> accessed 13 October 2022.
[70] Clare McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third Party Evidence’ (2017) 81 J Crim L 367.
[71] ibid 369-370.
[72] ibid 371-372.
[73] Tanya Palmer, ‘Failing to See the Wood for the Trees: Chronic Sexual Violation and Criminal Law’ (2020) 84 J Crim L 573.
[74] F v DPP [2013] EWHC 945 (Admin), [2014] QB 581.
[75] Palmer (n 73) 586.
[76] ibid 588.
[77] Section IV.A; Palmer and Wiener (n 39).
[78] UN Commission on Human Rights, ‘Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences on the Due Diligence Standard as a Tool for the Elimination of Violence against Women’ UN Doc E/CN.4/2006/61 (2006).
[79] Ministry of Justice & Victoria Adkins MP, ‘New non-fatal strangulation offence comes into force’ (7 June 2022), <www.gov.uk/government/news/new-non-fatal-strangulation-offence-comes-into-force> accessed 29 November 2022.
[80] Bows and Herring (n 7) 527.
[81] ibid 538.
[82] ibid.
[83] UN Women, ‘Covid-19 and Ending Violence Against Women and Girls’ (UN Women Headquarters 2020), <www.unwomen.org/en/digital-library/publications/2020/04/issue-brief-covid-19-and-ending-violence-against-women-and-girls> accessed 19 April 2022.