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  • Writer's pictureDurham Pro Bono Blog

The “50 Shades of Grey defence" That is Causing Women Injustice

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


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The recent violent death of Grace Milliane, a backpacker from Essex who was murdered in New Zealand by a man she met on Tinder, has fuelled the concerns in the growth of the ‘rough sex’ defence that is causing many women injustice[1]. The defence offered at Milliane’s trial was that the death was an accidental result of a sex act that she had requested – that there was supposedly consent. It is troubling that the Milliane’s case is merely part of a pattern:


in the last 5 years, 20 British women have been killed by men who have used the “rough sex” defence and concerningly, in almost half the cases, the defendants have either avoided jail or have had their sentences or charges reduced.

The organisation, We Can’t Consent to This are campaigning to raise awareness of the issue and the unfairness that women are facing, as men are able to claim that the women’s deaths were merely a result of a “sex game gone wrong” and they, in a perverse way, have consented to it[2].

Multi-millionaire John Broadhurst stated that his wife Natalie Connolly was as “dead as a doughnut” by the time he rung emergency services, after they engaged in “rough sex” which left Connolly with more than 40 injuries, including the fracturing of an eye socket and severe internal trauma, and a face sprayed with bleach as he

“didn’t want her to look a mess”[3].

The Crown Prosecution Service was initially doubtful of achieving a murder sentence and reduced the charge to manslaughter[4]. This is, perhaps, commentary itself as to how our society treats and perceives women – would any reasonable jury truly not consider this murder, or would Connelly’s sexual predilections shroud their judgement so much, to suggest that, because she desired “rough sex”, this translates to her wanting to be brutally beaten and killed? It can be argued that the focus on “rough sex” in these cases is a curtain behind which perpetrators can bulwark their immoral behaviour and justify victim blaming. Broadhurst was sentenced to less than four years, sparking outcry, with Labour’s former minister Harriet Harman, calling for a review of the sentence, stating that


“we cannot have a situation where men kill women and blame them”, and plead a “50 Shades of Grey defence”[5].

Broadhurst’s sentence was not changed.


It seems worth mentioning and drawing comparisons with the case of R v Brown, where a group of homosexual men willingly participated in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain6. In such a case, it was held that one cannot consent to harm and the defendants were convicted, despite the fact no permanent injury had been sustained by any of the men as a result of the activities[6]. It can be argued that the harshness of this sentence reflects the attitudes of society toward homosexual men engaging in sadomasochistic sexual activity – the court felt compelled to rule the way they did to ensure that public morals were not corrupted and to show condemnation of their behaviour. Therefore, why is it that Broadhurst was given such a lenient sentence of under four years for causing a woman over 40 injuries, while led to her death? Is this not exactly the behaviour that we want to condemn as a society?


Or is it that as a society, we have decided that women are to be like ‘Desdemona’ in their tragedy, and accept the blame for the tempered actions of the ill-tempered Othello?
That in a heterosexual relationship, such behaviour is to be anticipated?

The organisation, We Can’t Consent to This are campaigning for a change in the law. MPs Mark Garnier and Harriet Harman have proposed to amend the Domestic Abuse Bill to end the use of defences that state that the consensual activity had “gone wrong” and lead to far more lenient sentences[7]. Through tougher sentencing, the law will be able to establish that the “rough sex” defence is unacceptable – a woman may consent to some harm or life-threatening activities (such as choking), but this does not mean they consent to end their life.


Through such reform, fewer women will fall victim to injustice and hopefully we can decisively say that a “50 Shades of Grey Defence” should not be allowed.


Ishani Sathi (Criminal Law)

SOURCES


[1] 'The Guardian View On Grace Millane’S Murder: Outlaw The ‘Rough Sex’ Defence | Editorial' (the Guardian, 22 Nov 2019) <https://www.theguardian.com/commentisfree/2019/nov/25/the-guardian-view-on-grace-millanes-murder-outlaw-the-rough-sex-defence> accessed 26 November 2019


[2] 'Does Claiming A "Sex Game Gone Wrong" Work? — We Can't Consent To This' (We Can't Consent To This, 2019) <https://wecantconsenttothis.uk/news/do-these-defences-work> accessed 26 November 2019


[3] 'Rough Sex' Killer Sentence 'Disgraceful' (BBC News, 22 Dec 2018) <https://www.bbc.co.uk/news/uk-england-stoke-staffordshire-46659952> accessed 26 November 2019


[4] Ellen B, 'Prosecutors Thought No Jury Would Accept Natalie Connolly Was Murdered. What Does That Say? | Barbara Ellen' (the Guardian, 2018) <https://www.theguardian.com/commentisfree/2018/dec/23/prosecutors-thought-no-jury-would-accept-natalie-connoolly-was-murdered> accessed 26 November 2019


[5] 'MP Warns Against '50 Shades' Murder Defence' (BBC News, 2018) <https://www.bbc.co.uk/news/uk-england-46618040> accessed 26 November 2019


[6] R v Brown [1994] 1 AC 212 [213]


[7] 'ACT NOW — We Can't Consent To This' (We Can't Consent To This, 2019) <https://wecantconsenttothis.uk/actnow> accessed 26 November 2019

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