The narrative of sex games gone wrong is pervasive and dangerous; in the last year it has successfully been used as a legal defence countless times in UK courts over the violent death of women.
Today the Domestic Abuse Bill is going through the committee stage.
Trigger warning: sexual and physical violence
When Sex Games Go Wrong
The main inspiration for this documentary derived from conversations with friends. From anecdotes about nights out where guys took it ‘a bit far’ in the bedroom to more violent moments that friends would downplay with comments like ‘oh he was just a bit drunk’ or ‘he probably didn’t realise his own strength’. Surveying hundreds of people about their experiences, patterns began to emerge – a distinct lack of education in BDSM practice, porn and anecdotes acting as sources of knowledge and a lack of awareness on the legality surrounding the issue. The more women we spoke to, the clearer it was that this problem cuts much deeper than just some ‘kinky’ sex on a night out.
Soon after we started developing the film last October, Grace Millane’s case hit headlines. The British backpacker was killed in New Zealand, with the defence claiming she died during ‘rough sex’. The media’s tentative and often insensitive response to this case exemplified the work that needs to be done.
The Rough Sex Defence
The ‘sex game gone wrong’ defence claims that a person consented to the violent acts inflicted upon them and the harm was an inevitable consequence of such. As a result, perpetrators receive lesser sentences (such as manslaughter rather than murder) and shorter charges.
Campaign group ‘We Can’t Consent To This’ claim that the defence is now used more frequently and successfully in both murder and assault cases. The group was founded by Fiona Mackenzie in 2018, following the death of Natalie Connolly.
Natalie was killed by her partner, John Broadhurst, at their home in 2016. She suffered 40 separate injuries, including serious internal trauma, a fractured eye socket, facial wounds and heavy bleeding. She was pronounced dead at the scene after Broadhurst dialled 999 the morning after, claiming he had woken up to find her ‘dead as a doughnut’ at the bottom of the stairs. Broadhurst denied murder and claimed he only hurt Natalie ‘within the boundaries of masochistic desires’. Broadhurst was charged with manslaughter by gross negligence, for failing to get medical help, and was sentenced to 3 years and 8 months.
According to ‘We Can’t Consent to This’, 60 women have been killed by men who claimed it was a sex game gone wrong. 20 of these women were killed in the past five years but only 9 of their killers were convicted of murder.
Despite the absence of an official defence in English law, campaigners believe 45% of cases have used it successfully. We’re left questioning how someone can ‘consent’ to their own murder and is there any scope for ‘accidental’ deaths when practising BDSM?
What is ‘rough sex’?
BDSM stands for bondage and discipline, dominance and submission, and sadism and masochism. It refers to sensual, often intense experiences which usually, but not always, include sex. The survey conducted for this documentary concluded that 82% of the 300 participants under 40 had engaged in some form of BDSM practice. A BBC commissioned survey, suggests that 59% of women under 40 have experienced slapping and 38% had experienced choking in sex.
The BDSM community advocate safe, sane and consensual sex, including discussions around the individual’s hard boundaries, safe words and after care before any ‘play’ begins. For members like Lady Lorelei, a dominatrix that features in the film, the ‘pillar’ of safe BDSM practice is active consent.
However, the commercialisation of BDSM has encouraged a presentation of consent which is not informed or active. A view of ‘rough sex’ in mainstream franchises (such as Fifty Shades of Grey) and porn has arisen, at odds with the practice that the BDSM community advocate for. Campaigners therefore believe, that the success of the defence is partially due to a normalisation of violence during sex. Recent research suggests that a third of women have experienced unwanted violence during sex.
The Law and Domestic Abuse Bill
The death of British backpacker Grace Millane sparked outrage when her killer told police that Grace had asked to be strangled, that her death was an accident. But laws in New Zealand include more complicated provisions for cases like this. Grace’s killer was sentenced to murder but the same can’t be said for Natalie Connolly.
In the UK, the only legislation that criminalises bodily injury is over 200 years old.
Despite current English case law, the Crown Prosecution Service have confirmed they won’t pursue charges where the suspect is likely to claim they consented to the violence, [The Sunday Times, 31 May 2020].
Many hope that the 2020 Domestic Abuse Bill, entering the parliamentary committee stage today, will change this. One key amendment to the Bill, tabled by MPs Harriet Harman and Mark Garnier, attempts to ban the rough sex defence.
Never has legislative support for domestic abuse been so crucial. During the lockdown, domestic abuse charity Refuge have seen a 950% increase in visits to their website. According to the campaign ‘Counting Dead Women’, 16 women have been killed in the UK as victims of domestic abuse since the 23rd of March 2020.
The experiences that feature in this film are just an insight into a much deeper issue. The rise of the rough sex defence is just one element of the normalisation of violence against women. As domestic abuse affects 1 in 4 women in their lifetime, we need to re-examine attitudes and approaches towards women, sex and violence.
If you have been affected by any of the issues discussed in this film or report:
Caitlin Kelly is a freelance journalist based in London.