Menu Menu

What does the ‘rough sex’ defence mean for women?

As women continue struggling to make their voices heard in situations of violence, we examine the latest court defence trend which sees their private sexual narratives used against them – even when they can’t defend themselves.

In little-understood and alarming ways, sexual violence against women is still on the rise. Just this month, 21-year-old Grace Millane was murdered by a man she met on Tinder while backpacking in New Zealand – strangled to death during sex with him at his house. However, as disturbing as the case itself, the high-profile trial that followed has revealed a frightening new trend. One that sees women’s personal sexual histories used against them in court.

The ‘rough sex’ defence, which shows no signs of slowing down with almost half of all UK cases proving successful in the past five years, leaves a very clear message: if you die as a young woman away from your home, your sex life has the potential to overshadow your whole life.

Even though a guilty verdict was delivered by the jury in Millane’s case (she is now the 59th woman to be killed in a case that used the ‘rough sex’ defence in court), the trial itself has received a staggering amount of backlash for the way it presented her sexual history as evidence against her. Her use of fetish dating apps such as Whiplr and previous participation in BDSM was used to prove that she enjoyed certain types of sexual practices, and one of her ex-boyfriends was even called to attest that she enjoyed being choked for sexual gratification.

Now, I understand the requirement to cover all bases in these situations, but there needs to be a line between looking into someone’s background for more insight into a case and explicitly using it to shirk blame onto them when they have absolutely no way of standing up for themselves – especially in these sensitive circumstances. In my opinion Millane’s situation says a lot about a much wider-reaching problem within sex today. The case proves that it’s still considered taboo for women to enjoy more ‘unconventional’ sexual practices whilst it remains the ‘norm’ for men to associate violence and dominance with sex (this can be seen very obviously in the different porn marketed at women and men). This is a slippery slope to the kind of prevailing and undeniable sexism – almost sadism – we see in the rough sex defence, which can be exploited by people who aren’t just sexists, but murderers.

Horrified by the emerging ‘rough sex’ defence trend and the 90% increase in its use over the last half-decade, Fiona McKenzie set up We Can’t Consent To This, a campaign group with a mission to have the so-called ’50-shades’ defence thrown out of British courts. Alongside Labour MP Harriet Harman, WCCTT is working to add a clause to the Domestic Abuse Bill that would register it illegal for any man that’s killed a woman to claim she consented to the violence that resulted in her death, because consenting to certain ‘sex games’ is not the same as consenting to be murdered.

The ‘rough sex’ defence is also highly discouraging for victims of sexual abuse who want to come forward, as they worry their sex lives have the potential to be used to shame them (which is already far too common in the current court system as it is).

‘This appears to be a totally traditional male violence against women that seems to be absolutely in-line with wider violence against women,” says McKenzie. “But for some reason in the criminal justice system, and to some extent in the news media as well when it’s reported, it’s believed that the women have said ‘yes, I want to be horribly injured. I want to be hospitalised by my sex life’. Often you’ll find nothing about the person who has died beyond their name and these lurid accusations that she consented to all kinds of sexual activity before she died.’

The complicated intersection of violence and sex is an urgent matter. More and more women are dying due to confusion surrounding how people are having sex in the 21st century. It’s no surprise that rough sex has gained a great deal of popularity lately, especially when you take into account the proliferation of certain types of porn. What’s concerning about the fact that more young people are starting to partake in sexual practices on the kinkier end of the spectrum is that with a lack of openness about said practices, it’s very easy to either take things too far or assume that something’s okay to do when it actually makes the other person uncomfortable and sometimes scared.

In fact, a study carried out by Savanta ComRes for BBC Radio 5 revealed that 38% of women under 40 have experienced ‘unwanted’ choking, gagging, spitting, or slapping during consensual sex and that 42% of them felt ‘pressured or coerced’ into it. The normalisation of this is regularly blamed on the accessibility of hardcore porn, and its influence on young men and women alike. As McKenzie theorises, it’s likely BDSM porn might condition women to ‘do the rough stuff in order to feel anything,’ says McKenzie. ‘By the age of 25, as a young woman, you’ve probably been watching 10 years of hardcore porn.’ McKenzie expresses that society encourages women to wrongly associate sexual liberation with sexual extremes and this is made much worse by men who have internalised the notion ‘that women want to be pounded.’

However, what’s confusing here is whether or not these women have moulded and conditioned their desires to re-enact fantasies that aren’t even theirs, putting them at risk. Because, as I’ve said, an interest in rough sex is not restricted to men – there are just as many women who actively choose to pursue unconventional sexual practices, but it’s the miscommunication that’s coming forward as the key issue here.

This has consequently done a significant disservice to the BDSM community as people borrow its deviant-status and aesthetics without making a conscious effort to also adopt its guidelines regarding consent and safety. In the cult-book-series and film franchise 50 Shades of Grey, which largely introduced BDSM culture into mainstream society, all the practices that make properly performed BDSM safe were seemingly forgotten. This led to a total misrepresentation of what the community stands for. Essentially, as long as you’re being healthy and safe, and can opt in or out at any time, there’s absolutely nothing wrong with kink culture.

Something else to think about is how gendered violence is linked to the masculinity ‘crisis’ wherein men have become used to asserting dominance and power in the privacy of the bedroom and away from the public eye but are faced with major confusion in a post-MeToo moment. This has thrown their sexuality into murky waters as they suddenly find their previous behaviour to be unacceptable and many resent the changes. ‘There’s a lot of confusion about relationships among men at the moment, but not necessarily anger,’ said Conor Creighton who runs workshops on mindfulness and masculinity. ‘I don’t think men are angry, but anger is the only emotion men are encouraged to share. So if a man’s depressed, sad, or confused it emerges as anger, because that’s how we’re socialised.’

It remains rather hard to say what this new wave in sexual violence against women and how it’s been defended means for them, but it’s essential that safeguards are put in place both legally and culturally. Legally, it’s covered by campaigns like WCCTT, but culturally it’s not that easy to know where to start. Acknowledging that violence against women has begun to manifest itself in more private and subtle ways is a good first step to take as only then are we able to resolve an increasing and sometimes fatal problem where a woman’s independent interest in extreme forms of sex puts her at risk.

‘Strangulation is the cause of death in around a third of all spousal homicides,’ says Professor Susan Edwards, a barrister who teaches law. ‘Now there’s a burgeoning use of [rough sex excuses] because there’s greater acceptance of BDSM [bondage and sadomasochism] in relationships.’

Rough sex is meant to be about sex, not about death. Even if someone is into having rough sex, it doesn’t mean that they have a death wish. As for this supposed epidemic of women that are demanding they be choked and battered, rough sex has undoubtedly been popularised by porn, but are we forgetting who for? We know which gender watches the most porn so, let’s make sure we’re watching out for the concerningly fashionable ‘rough sex’ defence argument and focus on guaranteeing it doesn’t become a cynical self-serving practice that exploits and debases voiceless victims.