Northern Ireland Consultation on changing the law on ‘rough sex’ defences
The NI Department of Justice (DoJ) are seeking consultation responses to a potential addition to the law to prohibit the use of consent as a defence to sexual gratification, mirroring that added to the Domestic Abuse bill in Westminster. That Westminster Domestic Abuse Bill will not apply in NI or in Scotland, so this Northern Ireland amendment would be a fantastic step for NI women if it is taken forward by the DoJ.
Please respond to the consultation if you can. There is a short timescale of 11th Jan for responses - and please forward on to any organisations or individuals you think may be interested in responding.
Note the DoJ are separately considering specific law on non fatal strangulation – keep an eye out for an update on that when we have it.
Below we’ve shared our research on ‘rough sex’ and violence in Northern Ireland, and some of our thoughts on the consultation questions - including why this change is needed.
Northern Ireland - The Homicides
We know of three Northern Ireland women killed by men who claim they'd consented to the violence:
PATRYCJA WYREBEK, 20
2020, Newry
Patrycja was originally from Poland. She’d made many friends in Northern Ireland - in the week after she was killed, her friends fundraised for her family, and held a memorial walk for her.
She was killed by her partner. He has told police he killed her in 'erotic asphyxiation' - a claim repeated in his first court hearing. His defence barrister said that it was a normal part of their sex life, and when Patrycja died “she never gave him such signal to actually stop.”
Charged with murder, case yet to return to court
SYLVIA FLEMING, 17
1998, County Tyrone
Sylvia was a care worker and was pregnant when she was killed. She was killed by her boyfriend , Stephen Scott, then 28, “was known in the area as a "Jack the lad". He was also said “to have a liking for violent sex.”
Scott claimed Sylvia “died in a sex game that went wrong” and that “she had consented to being tied to his bed with ropes, gagged and injected with insulin.” He dismembered her body before hiding it in the foundations of a house.
Murder, Life sentence, served 19 years (now released)
JANET O'DONAGHUE, 36
1997, Armagh
Janet was mum to four children. She’d previously been in the British Army and had lived in England and Hong Kong. She had just met the man who killed her, at a disco. David Eric Porter, 23, strangled her. Appallingly, Janet was found by her daughter.
The Judge accepted Porter’s claim that she had died accidentally, in what the Judge called "deviant sexual behaviour". He accepted Porter did not intend to cause her death. Porter’s guilty plea to manslaughter was accepted.
Manslaughter, 5 years
Northern Ireland - Non Fatal Assaults
As we see across the UK, Northern Ireland men accused of serious violence against women will claim that the women consented to this, as part of rough sex or consensual ‘bondage’. In particular in cases of rape, physical injury will be explained away by the accused as due to consensual rough sex. Courts will hear the accused’s claims of the woman’s alleged sex life. Below are some of the recent cases where rough sex has been claimed by the defence:
Doak, 2019.
In Co Down, the accused was convicted in 2019 of a 2017 assault on a woman: she had been tied up with cable ties, raped, and strangled with a plastic bag over her head. The accused claimed the victim consented. Gary Doak claimed at the first court hearing "they were engaged in a consensual bondage sex session." Originally charged with attempted murder, Doak plead guilty to rape, a serious sexual assault charge, unlawfully and injuriously imprisoning the victim, assaulting her occasioning actual bodily harm and common assault. At Doak's sentencing hearing his defence QC suggested that it was a mitigating factor that the woman was in prostitution and advertised BDSM services – the court heard much of the services she offered. Judge Gordon Kerr said "I make it clear that I reject that suggestion entirely".
Doak was sentenced to 8 years, 4 to be spent in jail.
Unnamed Accused, 2016
A Belfast man is accused of raping his wife and breaking her eye socket, he was arrested after she had run into the street to seek help. His defence claims all sexual activity was consensual, that her injuries were explained by what he claimed was her participation in “bondage”.
Remanded in custody on charges of rape, sexual assault and causing grievous bodily harm with intent. It’s unclear if this later came to court.
In one further recent case another assailant was blamed for the woman’s injuries:
Unamed Accused, 2019
A Bangor man is accused of sexually assaulting and repeatedly kicking his pregnant partner, including in the stomach “to kick it out of her”. He claimed she liked rough sex, and probably got the injuries from being with some other guy. Remanded in custody on charges of attempted child destruction, assault occasioning actual bodily harm, threats to kill and sexual assault. It’s unclear if this later came to court.
Northern Ireland Women's Experience of Violence during sex
Last year, BBC 5 live found that 38% of women under 40 had experienced unwanted choking, slapping, gagging or spitting during sex: assaults of violence. That's over 100,000 women in Northern Ireland.
Many UK women have shared their stories with us, and few have gone to the police, although some police tell us of a huge increase in reports of this type of violence. Some UK women who have reported have had terrible responses from police and prosecutors - with women told the violent assault wouldn't be treated as a crime because they "could have consented".
It is vitally important that women can report violent assault to police and it be taken seriously.
The NI Consultation Questions
Below are some of our thoughts on the consultation questions. Link to consultation
Question 1: Do you think the law in Northern Ireland is sufficient as it stands?
Please give reasons for your response.
No.
‘Rough sex’ claims in defence to violence are increasing in frequency in Northern Ireland and across the UK, and the world, with a tenfold increase in rough sex claims in defence to homicide and non-fatal violence in the UK over the last 20 years.
The 1993 Brown case law which currently holds for Northern Ireland - which concerned gay men in consensual sadomasochism and said that consent is not a defence to more than transient or trifling injury – is not fit for this purpose. It is rarely referenced in these cases and has been undermined by further decisions such as Slingsby [1995], which was referenced in Broadhurst [2018] to support the decision that the most severe injuries to the female victim were consented to. The common law of Brown only deals with the question of consensual violence in sadomasochism, and it is this lens through which violent assault and killing of women has been viewed. All women who survive to give evidence in trials say they did not consent to the violence.
Question 2(a): Do you think that consent to serious harm should be outlawed in legislation, similar to the amendment to the Domestic Abuse Bill in England and Wales?
Please give reasons for your response.
Yes
Without change, more men will use this defence: we believe that men who use these defences do so because they see them working, in obtaining a lesser charge, a lighter sentence, or charges dropped altogether. Clear law will send a message to perpetrators that this defence will not stand, and they will be held accountable for the violence they’ve committed.
Question 2(b): If yes, do you think the offences to which the amendment applies are appropriate?
Please give reasons for your response.
No.
The proposed amendment should also include offences relating to strangulation, including any new offence considered as part of the DoJ’s review of law and practice on charging of non fatal strangulation. Strangulation is a feature of most of the homicides and around half of non-fatal assaults which are claimed to be ‘rough sex’. It is vital that this serious assault is charged appropriately, and not charged as a minor assault where consent can be used in a defence. The offences to which the amendment applies do not include common assault, nor strangulation offences (either those in current law, or those being considered by the Department of Justice). If non fatal strangulation is routinely charged as Common Assault, like this Lisburn man in 2019, this Belfast man in 2020, this Belfast man in 2020, and this Co Antrim man in 2020, then consent will be able to be used as a defence to these charges.
We agree that the offences proposed should have this amendment applied (Actual Bodily Harm, Grievous Bodily Harm and wounding with intent to cause GBH). In Northern Ireland rough sex claims are used in defence to non-fatal assaults which include very serious violence. In the UK as a whole, consent to violence is claimed in violent including waterboarding, wounding, electrocution, strangulation and asphyxiation, slapping, beating, punching and kicking. Of 115 UK non-fatal assaults in our research – all defendants were male, and 114 of the victims were female. All women in these non fatal assault cases said they did not consent to the violence.
Question 3: Do you consider that a programme of education is needed to:
raise awareness of the dangers of rough sex, and the meaning of consent; and
raise awareness within the criminal justice system to recognise and deal appropriately with the issue when a victim makes a complaint?
Please give reasons for your response.
Yes.
Sex and relationships education should reflect and challenge the intense cultural pressures on young women and girls to receive violence in their sex lives. Wider education which targets men who commit this violence would be very welcome – in 2020, Savanta Comres found that 25% of UK men under 40 admit to criminal assault of women, in the form of unbidden violence such as choking, slapping, gagging or spitting during sex. We note though that ‘sex’ is not the danger here – sex is not killing and injuring the women – serious and sustained violence is.
Yes.
The law as written can only change so much. Rough sex claims have succeeded UK-wide at every stage of the criminal justice system, from prosecutors who pursue a lesser charge, to judges who comfort the defendant that they accept he didn’t intend to cause the death of the woman [see trial judge comments in Porter, 1997, Armagh]. In Northern Ireland, police in 2000 reportedly told a man accused of killing his wife that if he claimed he strangled her in ‘kinky sex’, he would be treated lightly by the judge.
Question 4: Do you consider something different is required for Northern Ireland?
If yes, please give reasons for your response.
Yes
As above, given the DoJ is reviewing the law on non fatal strangulation, any proposal on consent to sexual gratification must ensure that non fatal strangulation assaults are not able to be consented to. If NFS is made a specific offence, then it must be included in the offences listed under any amendment on consent to violence for sexual gratification.
In Northern Ireland, as in England and Wales, further measures should be considered to ensure that this law works in practice, including:
Exclusion of admission of sexual history evidence from trials for violent offences – extending the protection in Article 28 of The Criminal Evidence (Northern Ireland) Order 1999, which covers sexual offences, to violent offences. Where 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 can be widely reported in news, and there are no restrictions on this.
Collection of data and reporting on the effectiveness of the amendment. At present our campaign is the only organisation collecting data on ‘rough sex’ claims – the DoJ will require its own data to understand if the amendment has had the intended effect and whether further measures (in law, in training, in guidelines) are needed.