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Harriet Harman calls for ‘rough sex’ defence used to protect killers to be made illegal through Domestic Abuse Bill amendment

The Labour MP said that 'women who claim ownership of their own sexuality are having it used against them to justify their injury or death'

Harriet Harman has called for the so-called “rough sex” defence used to protect killers to be made illegal after the Government announced it would be reviewing the controversial issue.

The Labour MP has spoken out in the past against defence lawyers representing men accused of killing a partner who claim the victim enjoyed BDSM and “rough” sexual intercourse which then led to them being injured or killed “by accident”.

This defence allows perpetrators to claim that a victim “consented” to being seriously injured or killed and has been widely criticised – particularly in the case of the recent killing of British backpacker Grace Millane, 22, which was tried in New Zealand.

As it introduced a new Domestic Abuse Bill to Parliament, the Home Office said it would also be conducting a review of such cases.

And Ms Harman has proposed new laws which would force the perpetrator to take responsibility for their actions and block them from claiming lesser sentences using the defence.

‘Female sexual empowerment is used against them’

“It used to be the case that it was regarded women had no sexual identity – that men were the sexual gender,” Ms Harman, MP for Camberwell and Peckham, said.

“As part of the women’s liberation movement, it was argued that women should be able to own their own sexual identity. Now it is an irony that women claiming ownership of their own sexuality [are having it] used against them to justify their injury or death.

“Cases such as these are already in case law and now we need this review – which I think should be carried out by the Justice Department – to start right away because he need this put into the statute,” she said.

“The review has got to be concluded in time for the final stages of the Domestic Abuse Bill so that they can add the amendment before it goes to the House of Lords. I am asking the Government to set out a time table of the review and we have a draft amendment already.”

Key moment

She added that with the DAB about to go through Parliament this is “a key moment we have to be able to deal with this injustice”.

The amendment proposed by Ms Harman, and supported by a number of other MPs including Labour leadership candidate Lisa Nandy, proposes two key changes to be made to the legislation.

“It prevents a defendant, when he has admitted his actions caused injury, from arguing or raising the defence of consent, if the injuries resulted in GBH or death,” she said.

“What we are doing with the law is saying that if he puts his hands around her throat or he has injured her by inserting an object into her, he has to take responsibility for the actions he has taken that have resulted in her death. Therefore it is irrelevant whether she is consenting or not.”

The man who murdered Ms Millane in New Zealand claimed she enjoyed rough sex which led to her death (Photo: PA)

The amendment specifies that any behaviour which would fall under the umbrella of domestic abuse as set out in the Bill, such as injuring, assaulting or killing a partner, cannot be defended on the grounds that the victim consented to it – including if it occurred during a “sadomasochistic encounter”.

‘Murder charge should not be reduced’

Secondly, Ms Harman said, the amendment sets out that prosecutors would not be able to reduce a charge in cases such as these which, she argued, should be tried as murder.

It states that the Crown Prosecution Service (CPS) can only reduce charges in such cases with permission from the Director of Public Prosecutions.

The Director of Public Prosecutions would also have to consult with the immediate family of the victim before deciding whether to approve the charge being lessened.

The issue of the “rough sex” defence has become more prominent in recent years. The issue grabbed headlines in 2019 during the case of backpacker Ms Millane, who was murdered by a 26-year-old man in New Zealand.

His defence argued that Ms Millane’s death was the result of a consensual sexual “misadventure” and that the victim enjoyed bondage and sadomasochism. Lawyers said she had asked the defendant to choke her and that this, combined with alcohol consumption, led to her accidental death.

‘Rough sex’ cases becoming ‘more prominent’

Her family were forced to hear details of her alleged sexual preferences in court, sparking anger among campaigners and calls for this sort of defence to be permanently barred.

Campaign group We Cannot Consent To This (WCCTT) has said that while recent cases in which the “rough sex” defence had been used had attracted a lot of media attention, it is not a new problem.

It counted 67 people in the UK who have been killed in cases in which it was claimed they had died because sex had “gone wrong” and noted that all the suspects have been male (60 of those killed were female). Many more people have been injured in this way.

According to the project’s data, sourced through local and national news sites in the UK and public judgements, deaths and injuries of women in claimed “rough sex” went from two per year in 1996 to 20 in 2016.

In the last two months of 2019, they counted ten instances of cases such as this. Some of the case studies noted by WCCTT involved victims who had been trying to leave their abusive partners before they were killed, or killers who had been abusive in the past.

“The law should be clear that you can’t consent to serious injury or death, but in practice, but to claim ‘sex games, gone wrong’gives too good a chance of a lesser charge, lighter sentence, or a death or an assault not being investigated as a crime at all,” the group said.

The Home Office said it was “looking at what more can done to stop the so called ‘rough sex’ defence being used by perpetrators in court to attempt to escape justice”.

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