On Valentine’s Day, the government announced it would introduce tougher sentences for offenders who kill in the context of sexual violence. This comes three years after the Domestic Abuse Act reaffirmed that consent to rough or violent sex cannot be a defence to murder. Despite this, the “rough sex defence” still leads to offenders receiving more lenient convictions and sentencing.
Official figures on how often the rough sex defence is used are difficult to obtain. But the charity We Can’t Consent to This tracked a ten-fold increase in rough sex claims between 1996 and 2016. They identified more than 60 cases of women being killed by men who attempted to rely on the defence over that period.
Typically, the defence argues that these killings were accidental during consensual rough sex, and that therefore the defendant cannot be guilty of murder. Instead, offenders are charged with or convicted of manslaughter, which attracts a much lower prison sentence of between three and five years.
Now, the government is proposing to introduce tougher sentences for rough sex manslaughter. Campaigners have broadly welcomed this, but will it be enough on its own?
In my research with my colleague Jonathan Herring, I have reviewed how legal reforms on rough sex have so far failed to change the culture and prosecution around this crime. Given this history, I am sceptical that these latest reforms will lead to meaningful change.
The trouble with sentencing
The government’s proposed changes will reportedly lead to sentences of “between four and six years longer” for rough sex death offenders. But such a blanket prediction is impossible given the bespoke nature of sentencing.
A recent review of domestic homicide killings commissioned by the government drew attention to difficulties encountered in sentencing rough sex manslaughter cases.
Sentencing offenders in any case is a delicate exercise that involves weighing up the culpability of the offender against harm to the victim, using sentencing guidelines that are specific to the offence. As part of this assessment, judges apply what are known as aggravating or mitigating factors to determine, overall, what sentence is most appropriate in an individual case.
Most sentencing guidelines for violent offences have aggravating factors. For example, if the crime was committed while on bail for a different offence, the offender had previous convictions or if a victim was particularly vulnerable.
Adding more aggravating factors will make the sentencing process more complex, but won’t necessarily result in a longer sentence in every situation – it is still a case-by-case basis. And, a sentence for manslaughter will still in most cases be significantly less than for murder.
The bigger picture of violence against women
More legislation is only one part of a much wider problem. This change is unlikely, on its own, to bring about the kind of cultural and social changes needed to address rough sex killings and violence against women.
As I have examined in recent research, there are other issues (more to do with procedure than the law) that arise in these cases. Also at play here are commonly held misbeliefs about rape, misunderstanding of consent, and the wide availability of violent pornography.
How rape myths and unconscious biases prejudice the judicial system against women — and rape survivors in particular
In these cases, defendants rely on gendered myths about women and sex to construct a narrative that the victim “liked” rough sex, often relying on their sexual history to support these claims. The focus shifts to the victim (who is dead and cannot challenge them) and their sexuality, while family and friends listen on.
This also means that media coverage of these cases often details the sexual behaviour and history of the victim, who is usually named. Publishers are subject to more restrictions when reporting on sexual offence cases and those involving children.
This is why my research suggests that other measures – such as introducing restrictions on the use of sexual history in murder cases and limiting media reporting may be better placed to address these concerns.
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Media and culture present violence as a routine part of sex, something both men and women enjoy. The availability of violent porn, much of which involves strangulation, and the wider mainstreaming of violent (largely heterosexual) sex through literature, film and popular culture have contributed to this.
A 2019 survey found nearly 40% of women had experienced nonconsensual violence during sex, with nearly the same proportion of men admitting they use violence during sex without obtaining consent. The current discourse also fails to properly account for the way rough sex can be used as part of abusive relationships.
The sentencing amendments will also do little to address these wider issues. The defence will still be able to claim the death occurred during consensual sexual activity and, in doing so, argue against a charge of murder. And details of the sexual history of the victim, where relevant, may still be used to support the defence case. Consequently, the media will still be able to report on these, to the detriment of victims’ families and future cases.
