‘Rough Sex’ and the Criminal Law: Global Perspectives

This introductory chapter will provide the context for the collection, introducing the topic(s) of sex, consent, the law and the wider ongoing debates concerning the use of consensual ‘rough’ sex and/or bondage, discipline, sadism and/or masochism as a defence in homicide cases. An overview of the book will also be provided.

Rough sex - or what is referred to in this chapter as ‘consensual aggression and violence during sex’ (CAVS) - has been the focus, in the United Kingdom and internationally, of some attention and also concern. The latter derives especially from criminal justice proceedings relating to incidents where male suspects have seriously or fatally injured another individual, usually female, and then made claims - that are widely believed to be false - that the incident was a ‘sex game gone wrong’. Despite the importance of this subject, there is little or no understanding of the state of knowledge surrounding CAVS. This chapter outlines results from what is believed to be the first scoping (literature) review of CAVS in the general population. The review was based largely on a search, during June and July 2021, of 15 major databases using 18 search terms, which was conducted in accordance with the JBI Manual for Evidence Synthesis. A total of 74 sources were identified. The research reviewed covered a quite large number and diverse range of areas in respect of CAVS, comprising: conceptualization; attitudes; extent; context, dynamics and nature; explanations; CAVS-related pornography; effects; alleged CAVS; policy and practice responses; methodological weaknesses; and future research needs. Overall, the review highlights two distinct perspectives on CAVS: in the first, individuals chose to take part in CAVS, which they like and enjoy; in the second, individuals, especially women and girls, have experiences of CAVS that are non-consensual or unwanted, and which they find upsetting, frightening or scary.

This chapter will explore the links between coercive control and ‘rough sex’. The chapter will highlight how easily sexual behaviour within a coercively controlling relationship can be presented as consensual. The chapter will explain how coercive control is typically about compelling a partner to comply with traditional gender norms and this makes consent within such a relationship particularly difficult to assess. However, it will be argued that there should be a strong legal presumption that if a relationship is marked by coercive control that sexual behaviour within it is non-consensual. The chapter will also explore in what circumstances rough sex should be regarded as lawful.

Rough sex appears to be experiencing a cultural ‘moment’. Depictions of rough sexual behaviours are common in contemporary movies, lifestyle magazines, and mainstream heterosexual pornography. Concerningly, rough sex has also been an aspect of numerous high-profile murder trials around the world where the accused has claimed that the woman’s death was the result of consensual rough sex, prompting this edited collection (see Introduction chapter).

Despite widespread acceptance of the term ‘rough sex’, it lacks definitional and conceptual clarity, which has implications for research, criminal justice, sexual violence prevention, and for understandings about consent between sexual partners. This chapter argues that mainstream heterosexual pornography is a critical site for understanding the development of collective meanings about rough sex. Through an analysis of the definitions of rough sex provided on three popular pornography websites in the MindGeek network – Pornhub, Youporn, and Redtube – this chapter signals how framings of rough sex in pornography provide a reference point for understanding what rough sex is and how it is performed. It argues that the framing of rough sex on pornography websites serves to reinforce wider normative ideas about heterosexual sex, presenting rough sex as something that is done by men, to women, in legitimate pursuit of sexual pleasure. Further, this chapter argues that these framings reinforce wider social messages that position rough sex as popular, common, and desirable. This chapter provides a starting point for developing more comprehensive understandings of what constitutes rough sex, as well as suggesting several avenues for future research agendas.

Using original transcripts of cases in which ‘sex games’ have ‘gone wrong’, this chapter examines how the practice of bondage and sado-masochism (BDSM) is figured in legal discourses and the implications this understanding of it has for debates about consent and sexual violence. The premise that consent to sexual violence might act as a defence or mitigating factor in cases which go to trial suggests that something understood as BDSM is recognized as a legitimate sexual practice by the courts. Recognizing the legitimacy of marginalized sexual practices can be understood as a progressive way to recognize individuals’ autonomy and freedom, within the contemporary neoliberal framework in which these cases play out. Campaigners against the judgement of the foundational Brown case make this clear (The Spanner Trust, n.d.). Yet, BDSM practice has also been mobilized to justify or diminish the significance of sexualized violence against women (Harman & Garnier, 2019, July 19).

This chapter navigates the line between these two priorities to interrogate the ways in which courts themselves interpret and understand BDSM. Gaining insight into how courts might be said to ‘operationalise’ BDSM, we can gain some insight into the role that consent plays in understanding sexual violence, including the work that consent has to do to turn an act of sexual violence into one of BDSM.

In order to do this work, I have acquired nine transcripts of crown court cases from 2010 to 2020 in which a ‘rough sex’ defence was used. Conducting a discourse analysis of how BDSM is imagined in these cases, in dialogue with previous I have conducted on consent and BDSM communities (Fanghanel, 2019, 2020), this chapter traces how knowledge about BDSM in created, and how this becomes used to affect justice outcomes.

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.

This chapter explores the challenges associated with proving an absence of consent in rape cases involving non-violent sexual coercion. It is argued that the continuing influence of the ‘real rape’ stereotype perpetuates an expectation in jurors’ minds that a ‘real rape’ will be attended by significant levels of physical violence and/or serious injury. The chapter considers rape law in Ireland and England and Wales to examine how existing law might be reformed to improve the potential of appropriately punishing experiences of non-consensual sexual intercourse which might be categorized as sexual coercion.

The need to revisit the current law in this area is particularly pronounced now that domestic abuse law has been reformed to recognize coercive control. This leads to the incongruous situation where coercive and controlling behaviour is recognized in the context of domestic abuse but it remains very difficult to successfully prosecute offences involving sexual coercion. The chapter discusses a number of reforms which would improve the prevailing law in this area and better align the approach to coercion in domestic abuse and sexual abuse contexts. Reforms proposed include: further developing legislative and non-legislative guidance on consent, introducing a specific offence of sexual coercion, and exploring the potential of prosecuting sexual coercion within intimate partner relationships as domestic abuse, rather than as a sexual offence.

This chapter critically evaluates the use of the so-called ‘rough sex defence’ in Australian rape cases. We argue that the ‘rough sex defence’ in this context is an example of ‘implied consent’, specifically in that it relies on evidence that the defendant and victim-survivor had engaged in (or had even simply discussed) ‘rough’ sexual activity on a previous occasion(s). This narrative of implied consent to rough sex is used to establish either of two things. The first is that the victim-survivor actually did consent to ‘rough’ sexual activity on the occasion in question. The second is that the defendant mistakenly believed in consent, since roughness had been a feature of previous sexual discussions or activities. We argue that the use of the rough sex defence in rape trials is problematic for at least two reasons. First, the defence allows defendants to rely upon false and harmful ‘rape myths’ to avoid accountability for their actions. Second, a reliance on the rough sex defence also contradicts moves to adopt an affirmative consent standard as part of Australian rape law. We conclude by recommending reforms to the legal framework that would help reduce the reliance on the argument that a rape allegation can be explained away as ‘rough sex gone wrong’.

This chapter will seek to add insight on the lived experiences of women subjected to non-fatal, non-consensual violence in sex (NCVS) by men.

The chapter will draw on primary research conducted by the author in the Spring and Summer of 2020, comprising in-depth interviews with eight women and a survey of 84 women, all of whom had experienced NCVS, often from multiple perpetrators. It will summarize the acts to which women were subjected (often life-threatening in nature), the long-term impacts on women, and the ways in which men minimized and re-packaged their violence. It will make the case that NCVS – often dismissed as ‘rough sex gone wrong’ – is a particularly insidious form of violence against women and girls.

The chapter will highlight how women’s sense-making processes around NCVS are often hampered by legal definitions of sexual violence, which left women wondering ‘what category to put it in’. Using Fricker’s (2007) concept on ‘epistemic injustice’, it will emphasize the need for a ‘shared tools of social interpretation’ (p. 6) around NCVS, alongside any legal changes, and the importance of campaigns like We Can’t Consent To This in giving language to women’s often unspoken experiences.

In 2020, the Westminster Government proposed statutory provision prohibiting the use of ‘consent to serious harm for sexual gratification’ as a defence to criminal charges of violence. This addition to the Domestic Abuse bill was made in response to the 18 month campaign by We Can’t Consent To This and a cross party group of MPs, after rising numbers of homicides of women where the perpetrators claimed the woman asked for the violence, in ‘rough sex’, ‘gone wrong’.

This research is based on new data and detailed analysis on 67 non-fatal violent assaults and 24 homicides where the accused claimed that this violence was consensual, focussing on criminal cases in England and Wales over the 10 years from 2010. Some earlier cases are included for historical context and particularly where they became influential in later Criminal Justice System (CJS) outcomes. It addresses a shortage of data on the use of ‘consent’ claims in defence to charges of fatal and non-fatal violence, using keyword searches on historic news and legal archives and submissions from victims in criminal cases to establish the extent of these claims, the nature of the assaults claimed consensual, and to assess the CJS’s response to the claims.

This research – part of the evidence from We Can’t Consent To This which was considered by Government – set out the case for new law on consent defences to violence, despite there being existing common law in England and Wales. This research finds that the so-called ‘rough sex’ defences have been successful in deflecting prosecution for violence against women for decades, identifying failings at every stage of the CJS, in fatal and non-fatal violent assaults. Notably the women injured in these criminal cases do not agree that they consented to the violence, where they are able to take part in criminal proceedings. But still the claims that they did appear to have succeeded.

This research proposes that change in attitudes and outcomes is needed at every stage of the CJS, and, with the UK Government proposing to keep the criminal law on this ‘under review’, identifying where further provision in law or in practice may be needed.

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.

In my preliminary thesis studies of social media, in the wake of the killings of women such as Natalie Connolly, there was a seeming widespread agreement, that if a man could get a relatively minor sentence for ending the life of a woman, using the purportedly ‘erotic’ context of the death as a legal means, then something in the judiciary was going wrong. Traditional feminists and many sex freedomists appeared to concur, in a rare moment of overlap on contemporary sexual ethics from these often scrummaging political groups. However, this ostensible concurring mystifies a more fundamental set of antagonisms that has plagued what we occasionally understand as the rhizomes of the ‘progressive left’, not least in the difficult relationship between political feminism and the sexual freedom movement, or indeed ‘sex positive feminism’. This latter ‘choice’ feminism seemingly elided with sexual freedom and jettisoned the hang ups of radical, Marxist and some branches of equality feminism, still persisting but indicative of what we broadly call ‘the second wave’. This elision between feminism and sexual freedom situates women as individuals with identities that signify an inexhaustible will, not as a casted and economized subjectivity embedded in a historical moment. This move sought to overcome the stalemate between sexual liberation, and women’s liberation. But did it? If we ask questions such as: what should legal practice and policy privilege in its functioning, the protection of individual sexual choices, or defence of the physical safety of women made vulnerable to violence by sexually oppressive cultures? – we may uncover the more profound ethical and epistemological contentions at stake. I want to frame the disputes between sexual freedomists and feminists that still persist, despite our contemporary liberal feminist vernacular, in relation to this theoretical shift in what is understood as ‘choice’, using the issues that satellite ‘the rough sex defence’ (BDSM, porn, violence, consent) in order to illuminate this tension. I want to use a materialist feminist analysis that retraces the concept of ‘choice’ in the feminist canon in order to analyse this elision in the context of the antagonisms between women’s liberation and sexual liberation. In tracing this ethical history I hope to contribute to an untangling of these unwieldy political notions in order to better confront the crystallized divisions in progressive sexual politics that contextualize the underlying disputes that frame the ‘the rough sex defence’. Doing so is necessary if we are to manage a more open, lucid conversation about what the role of the law is, or should be, in dealing with sex and violence in twenty-first century Britain.