Getting Away With Murder? A Review of the ‘Rough Sex Defence’

Date01 December 2020
AuthorJonathan Herring,Hannah Bows
DOI10.1177/0022018320936777
Published date01 December 2020
Subject MatterArticles
Article
Getting Away With Murder?
A Review of the ‘Rough
Sex Defence’
Hannah Bows
Durham University, UK
Jonathan Herring
Oxford University, UK
Abstract
Several high-profile murders of women killed during alleged consensual sex ‘gone wrong’ have
led to widespread calls for reform to prevent the use of what has been termed the ‘rough sex
defence’. Concerns about the use of this ‘defence’ are located within broader concerns about
the high rates of domestic abuse and fatal violence against women. Lobbyists, campaign groups
and members of parliament have drawn attention to the increase in this ‘defence’ featuring in
criminal cases in England and Wales and have consequently proposed two amendments to the
Domestic Abuse Bill (2020), namely a statutory prohibition of consent as a defence to actual
bodily or more serious harm, including death, and introducing additional scrutiny in charging
decisions by requiring the Director of Public Prosecutions to authorise charges of man-
slaughter (rather than murder) in cases involving rough sex/sadomasochism (SM). This article
provides a critical analysis of the use of rough sex/SM in female homicide cases and proposed
legal reforms and concludes that the proposed reforms would fail to capture many of the
‘rough sex’ cases that have come before the courts in recent years and may not have the
intended effect. We consider potential alternative approaches.
Keywords
Rough sex, homicide; murder, defences to murder, violence against women, consent
Introduction
The case of British backpacker Grace Millane, who was strangled to death in New Zealand by a man she
had recently met on a dating app, dominated international headlines in 2019. The man charged with her
murder was ultimately found guilty and convicted in November 2019, after a trial in which he alleged the
Corresponding author:
Hannah Bows, Durham Law School, Durham University, Palatine Centre Stockton Road, Durham, DH1 3HE, UK.
E-mail: hannah.bows@durham.ac.uk
The Journal of Criminal Law
2020, Vol. 84(6) 525–538
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018320936777
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