Reacting to Rough Sex: The Unexpected Toll of Section 71 Domestic Abuse Act 2021

Abstract

The enshrinement of R v Brown within section 71 Domestic Abuse Act 2021 was celebrated by campaign group ‘We Can’t Consent To This’ (WCCTT) as a means of combating the rough sex defence, and as a victory for women. Yet the practical limitations of this codification suggests that there is more to this claimed victory. In this chapter I suggest that the symbolic effect of the codification of Brown underpinned WCCTT’s celebration, as for the first time the legal treatment of sadomasochistic sex (‘SM sex’) became interwoven with, and inflected by, legislation seeking to target abuse. This approach, influenced by the traditions of radical feminism, represents a departure from a liberal legal method and, I argue, forecloses productive legal reform. In affirming the contemporary relevance of Brown, a case infamously mired in homophobia, the legal harm of SM sex is both improperly considered and improperly addressed. Further, by stitching together Brown and the Domestic Abuse Act 2021, the law fails to articulate what distinguishes SM sexual practice and abuse. This analysis does not prevent my agreeing that SM sex poses significant challenges to the operation of justice. To conclude, I propose that an approach which seeks to bolster the competence of the court via education, and that distinguishes breathplay from the otherwise monolithic treatment of SM sex (building on section 70 Domestic Abuse Act 2021) will generate better outcomes for both sexual diversity and those who experience gender-based violence.

Citation

Bradley, E. (2022), "Reacting to Rough Sex: The Unexpected Toll of Section 71 Domestic Abuse Act 2021", 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. 167-183. https://doi.org/10.1108/978-1-80117-928-720221011