The Legality of Love-bites

Abstract

In a series of high-profile cases, defendants accused of murdering women have tried to mitigate their murder charge on the basis that the killing was not intentional but rather was an accidental outcome of consensual ‘rough sex’. Activists, academics, and the popular press have presented this as a form of victim blaming and calls have been made to ban the so called ‘rough sex defence’. This has led to a promise from the government to include such a prohibition in the Domestic Abuse Bill which is currently making its way through Parliament. In this chapter the overarching problems around trying to define ‘rough sex’ in a sufficiently clear manner to make for an effective law will be explored. This will include a discussion of the inherent physical riskiness and harm of sexual intercourse and associated activities and how this would fit with the current offences against the person legal architecture. It will also consider how the court has struggled to deal with other areas of potentially consensual personal interaction which can lead to harm such as the case law on ‘horseplay’. Finally, it will argue that trying to define ‘rough sex’ within the confines of domestic abuse legislation may limit the scope and effectiveness of the measures. The proposals will also be placed in the context of previous unsuccessful attempts to deal with gendered issues in criminal law offences such as limits on the use of sexual history evidence and the use of sexual infidelity in ‘loss of control’ cases. The chapter will conclude by considering whether a ‘rough sex’ defence ban might meet a similar fate.

Citation

Spalding, A. (2022), "The Legality of Love-bites", Bows, H. and Herring, J. (Ed.) ‘Rough Sex’ and the Criminal Law: Global Perspectives (Feminist Developments in Violence and Abuse), Emerald Publishing Limited, Leeds, pp. 85-97. https://doi.org/10.1108/978-1-80117-928-720221006