Consent Defences and the Criminal Justice System

England and Wales - June 2020

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This research considers cases of violence where that violence is claimed to be consensual, in criminal cases in England and Wales.

It is intended to support the Government in its review of so called “rough sex defences”, and the work of Members of Parliament in confirming the scope of the Domestic Abuse bill. We Can’t Consent To this supports the amendments to the Domestic Abuse bill proposed by MPs Harriet Harman, Mark Garnier, Laura Farris and others – and these have cross party and public support.  But the Government can go - must - go further: rough sex claims have been successful for nearly 50 years, and law change and more is needed to fix this.

Summary

We Can’t Consent To This research the extent of so-called “rough sex”, or consent defences to violence and campaign against the normalisation of violence against women.  We were first to research the full extent of rough sex defences in the UK and beyond.

Rough sex defences can be made in both homicides and non-fatal assaults.  Only men have used these defences in the UK. We have now found 60 homicides of UK women where the injuries are claimed to be part of consensual rough sex, and 7 homicides of men.  We also have 114 women in UK court cases where violence (excepting sexual violence) is claimed to be consensual. 

We now collect data on these cases as they happen. These assaults often feature appallingly serious injuries, many lifechanging for those who survive, and they are becoming more common. There was a tenfold increase in rough sex claims between 1996 and 2016. And just between November 2019 and March 2020, fifteen women were victims in UK court cases where these rough sex claims were made, along with the murder in New Zealand of Grace Millane by a man whose claim that she consented was repeated in news stories all over the world, along with lurid detail of her alleged sexual history.

Thanks to the case law decision in R v Brown, you should not be able to claim consent to serious injury in the law of England and Wales, but our research on the outcomes in the criminal justice system shows that this existing case law is not up to the task and that statutory provision is now required, as well as wide ranging measures to ensure that the law works in practice, and adequate data be collected to confirm the law is working. 

This research briefing sets out our data on homicides and non-fatal assaults – the detail of the latter is included here for the first time. In homicides, too often the claim that she consented is successful, with prosecution for manslaughter, a lighter sentence, or in some cases the death initially not treated as a crime at all.

Now we have found that the existing case law is referred to rarely in the non-fatal assault cases, and even where consent defence is disallowed by judges, they will give credit in sentencing for “a belief” that the woman consented.  Men are not being prosecuted for acts of admitted violence – and even where they are, the man presents a defence that she consented, and often juries do not convict.

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.

Notably the women injured in the cases in our research do not agree that they consented to the violence, where they are able to take part in criminal proceedings.  But still the claims they did succeed.

The 1993 Brown case law - which concerned gay men in consensual sadomasochism – has long been argued by lawyers and students to be illiberal, outdated, and ripe for reform. And case law decisions since have narrowed the effect of Brown. We can now confirm that the CPS believe that the case law will be overturned and so are not prosecuting violent assaults which could be claimed to be consensual.

Whether violence is prosecuted as homicide, common assault, or assault occasioning actual or grievous bodily harm, substantial evidence of previous consent or of her sexual history may be presented in court.  In cases which have no sexual assault charge, her name and sexual history is widely reported in news, and there are no restrictions on this.

These “consent” to violence claims can also be successful in cases of sexual assault, where charges relating to this additional violence are not pursued and the rape or sexual assault prosecution is not successful.  We do not know if the decision not to prosecute additional violence is due to the CPS belief that Brown will be overturned, but it appears to be common practice.  And with rape convictions at historic lows, women tell us men who admit to beating or strangling them are not prosecuted at all, as the CPS drop rape prosecutions against those men.

We hear from women told by police that they could have consented to strangulation, and so it won’t be prosecuted.  And in those case which are prosecuted, strangulation is underprosecuted, most often not charged at all in non-fatal assaults, or charged only as common assault

We find that many of the women killed or injured in “rough sex” defence cases were in existing or prior relationships with the men – but not all.  Those who had just met, were work colleagues of, or were neighbours of the perpetrator would not be covered by any amendment to the Domestic Abuse bill if these amendments are restricted to the bill’s scope of being personally connected.

We have found that 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, and this claim will be reported in the news along with her name, even where these men plead guilty to the assault at court.

In summary, these consent claims do not always work – but far too often they are worth a try.