This is good, good news
We're pretty happy to call this a victory. This will mean so much, to so many women.
Today the Government published their proposal for clear law on consent to serious harm, publishing their amendments to the Domestic Abuse bill to make this law crystal clear. This followed an 18 month campaign by We Can't Consent To This with MPs Harriet Harman, Mark Garnier, Laura Farris, and 80 MPs from 6 parties backing their amendments to the Domestic Abuse bill, along with 67,000 people who signed our petition, Grazia magazine and their readers, Mumsnet and the many many others who cheered and supported us along. Two weeks ago, the Government said they'd come back with their own proposals on ending rough sex defences. We know that ministers Alex Chalk and Victoria Atkins have taken this issue so seriously. This has been a true collaboration - and today the Government delivered on much - not yet all - of what is needed to change this.
This will come as a huge relief to women. Violence in sexual relationships is appallingly common now - this new law, if fully enforced, will go some way to making sure those women get the outcomes they deserve if they report to police. And ensure that women and their families are not subjected to the horror of rough sex defences.
There are gaps still, the Government must resolve:
We've long said this will take law change and more to fix - today we see that law. But the Government must go further:
Non Fatal Strangulation is widely underprosecuted. We support The Centre For Women's Justice call to make this a specific serious offence through the Domestic Abuse bill.
In cases of violent assaults, women's sexual histories are being presented in court to support the claim she consented to violence - and reported in press, along with her name.
Change in attitudes and outcomes is needed at every stage of the criminal justice system, and the Government must monitor data on outcomes to make sure their measures have been successful.
We look forward to hearing more on what else the Government will do to make sure this law works.
Quote: Fiona Mackenzie WCCTT I'm so proud of us, of what we've done. We Can't Consent To this have done this round our day jobs, we're volunteers, all of us furiously committed to changing outcomes for women. Some of us knew women who've been killed and were determined to not let what happened to their friend happen again. For nearly fifty years, the criminal justice system has failed so many women - it's in all of their honour that we've fought this. We couldn't have done this without brilliant MPs: Harriet Harman, Mark Garnier, and Laura Farris, and all the others who've worked together across party lines to change this. We'll keep going, this isn't law yet, and will apply only in England and Wales: Scotland and Northern Ireland must be next. And we'll continue to generate analysis and influence policy to improve outcomes for women: there is so much still to do.
FURTHER BRIEFING:
Who are We Can’t Consent to This?
We Can’t Consent to This researches prevalence of “rough sex” defences and campaigns against the normalisation of violence against women and girls. We were formed in response to the inexcusably short sentence given to the man responsible for the death of Natalie Connolly and were the first to research and publish the true extent of rough sex claims in both homicides and in non-fatal assaults in the UK.
In response to Natalie's partner being sentenced, and MP Harriet Harman saying on BBC Woman's Hour that she would do something, WCCTT founder Fiona Mackenzie set the campaign up in a hotel room at Christmas 2018, publishing the stories of women killed to show the extent of consent defences to homicides, and to violent assaults, and the ways the criminal justice system failed the women.
Over the 18 months since, Fiona has been joined by 15 women, all determined volunteers. Some of the women were friends of the women killed - and in honour of their friends have battled to change this. We Can't Consent To This had huge support from campaign partners Grazia magazine, and Mumsnet. Harriet Harman MP was joined by Mark Garnier, the MP for Natalie Connolly's family, and Laura Farris, and 80 other MPs from 6 parties, who supported their Domestic Abuse Bill amendments to end the success of 'rough sex' defences.
What is the ‘rough sex’ defence?
“Rough sex” defences are cases where violence is claimed to be consensual - part of sex - by the person accused, at some point in their contact with the criminal justice system. This violence might be in a homicide or non-fatal assault. The victim may also have experienced sexual assault, including rape.
These are cases where violence, including fatal violence, is explained away as “rough sex”, a “sex game”, or “BDSM” “gone wrong”.
What is the scale of the problem?
We’ve found 67 recent cases of people in the UK who were killed during so-called ‘sex games gone wrong’; 60 of those killed were female. We have found many more women injured in non-fatal assaults which those accused say they consented to. Everyone who has used this claim in a defence in a UK homicide or non-fatal assault is male.
A growing number of women are being seriously injured and killed during so-called ‘sex games gone wrong’. 1996 two women per year were killed or injured during what the defendants called “consensual rough sex”; by 2016 this had rocketed to 20 women per year – a tenfold increase[1].
Of the women killed, half were in relationships with the men who killed them. Most of those men had a history of abuse. And many of these defendants had other convictions for serious violence – rape, murder, kidnap – of women.
Extraordinarily, the latest Femicide Census[2] catalogued eight women killed in sexually sadistic homicides in 2018. Six of those eight men accused of sexually sadistic homicides in 2018 used a ‘rough sex’ defence. These murders would have a 30-year minimum life term starting point[3] so there is a strong incentive to rebrand this conduct as consensual.
And in our new research on non-fatal assaults, we’ve found 115 people who have had to attend court where it’s claimed they consented to violent injury – all but one of them women, and 67 injured In just the last ten years. All of those say they didn’t consent. The violence used in non-fatal assaults includes waterboarding, wounding, electrocution, strangulation and asphyxiation, slapping, beating, punching, and kicking, and in one case, a shotgun fired intimately at a woman. It appears fairly common for those with history of domestic abuse who are accused of violence like beating or wounding to tell police that the woman’s injuries were in fact due to rough sex.
But still those claims worked, in a lighter sentence because the defendant believed she was consenting, dropped prosecutions because the woman may have discussed a “sex fantasy” – and as reported this month: a woman told by the CPS that they won't prosecute her violent assault because the courts may overturn the existing case law, and the defendant say she consented to it. If the CPS won't prosecute the existing law, parliament must step in.
Strangulation in these cases is rarely prosecuted at all, or as common assault: it should be tried as ABH or above. And in many cases, the victim’s sexual history viewed in court, and reported in the news, with her name.
And this is at a time of a shocking rise in violent assault of women in sex: BBC research reveals that 38% of UK women under 40 have experienced unwanted slapping, choking, gagging, or spitting during consensual sex.[4] This is 3.6 million UK women who have been violently assaulted, and most of the men[5] who do it say they are influenced to do so by porn. Every day women write to us sharing their experiences: sexual violence against women is being normalised. Few of those women have yet contacted police, although we’ve heard anecdotally of a ‘huge’ increase in reports seen by police, and appallingly of women told by officers in four police forces that you “can consent to” strangulation now.
The particular harm of strangulation and asphyxiation
Strangulation and asphyxiation is an overwhelming feature of the homicides claimed to be rough sex – around two thirds of those women have been strangled. In Non Fatal assaults, strangulation is explained away as “consensual”.
Although it is common for strangulation to leave no visible signs of injury, new research sets out the terrible harm suffered by victims of non-fatal strangulation, with the onset of symptoms sometimes delayed by days or weeks. Harms can include stroke, cardiac arrest, miscarriage, incontinence, seizures, paralysis, speech disorders, and other forms of long term brain injury. This research by NHS clinician researchers[6] terrifyingly sets out:
Up to 10% of the population have experienced strangulation.
This rises to over 50% of women subject to routine domestic abuse, and up to 20% of women who have been sexually assaulted.
Strangulation is an overwhelmingly gendered crime: in a review of 300 forensic records in San Diego, 298 involved a man strangling a woman.
if a woman has been strangled, the chance of her subsequently being murdered rises eightfold.Neck structures are alarmingly fragile: blocking the jugular vein can take less pressure than opening a can of Coke.
Consciousness can be lost within as little as 4 seconds of arterial pressure. Losing consciousness indicates at the very least a mild brain injury.
Consciousness was lost in between 17% and 38% of strangulation incidents identified.
It is thought strangulation might be the second most common cause of stroke in women under 40.[7] and
In one “rough sex” case where the defendant was not prosecuted for strangulation: – “Her idea was to involve the violence with the sex. She insisted on strangulation. She just wanted more and more and more”. She didn’t agree she consented. He was found not guilty of all charges which were brought - wounding and threats to kill - at court.
Strangulation is widely underprosecuted[1] and we support the introduction of a specific, serious, strangulation offence. [1] Domestic Abuse bill, the need for an offence of non-fatal strangulation; Centre for Women’s Justice 2020
What did we ask for from MPs and the Government?
We believe that defendants who use these rough sex claims do so because they see it working.
We need wide ranging measures to stop the success of these claims: where they results in no investigation by police, or charges dropped by prosecutors, violence – including strangulation – not prosecuted even where he admits doing it, a sentencing benefit, the woman’s sexual history used against her and reported in press.
MPs Harriet Harman, Laura Farris, and Mark Garnier – the family MP for Natalie Connolly, a young woman killed with a rough sex defence - have worked together to set out amendments to the Domestic Abuse bill now before bill committee. These move and clarify the current law in statute, ensure prosecution decisions are reviewed in these homicides, make strangulation a specific, serious offence, and protect victims from having their sexual history used against them in court. These amendments have cross party and significant public support: 65,000 people have already signed our petition with Grazia, and 75 MPs from 6 parties have already signed up to support.
We want Bill Committee MPs to adopt these amendments, as they are strong proposals which can begin to end the success of rough sex claims.
But the Government are considering their own proposals. We know the Government know how serious this is, and that they can, and must, go further than the amendments proposed to date. We must protect women who’d just met the perpetrators, who wouldn’t be covered by the scope of the Domestic Abuse bill, protect victims of common assault too from having their sexual history used against them, and ensure that data is collected so the Government know whether their measures have succeeded.
[1] We Can’t Consent To This Research 2018-2020
[2] Femicide Census of 2018 - February 2020
[3] Section 5 of Schedule 21 of the 2003 Criminal Justice Act
[4] 'A man tried to choke me during sex without warning' - BBC 5 Live/Savanta ComRes Research November 2019
[5] BBC 5 Live and Disclosure/Savanta Comres 2020
[6] A Systematic Review of the neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence
[7] Domestic Abuse bill, the need for an offence of non-fatal strangulation; Centre for Women’s Justice 2020
