The amendment outlawing the “rough sex” defence will be added to the Domestic Abuse Bill today, as it enters its Report Stage in the House of Commons. The clause added by the government rules out “consent for sexual gratification” as a defence for causing serious harm, in England and Wales.
Labour’s Harriet Harman, who led calls for the law change, has told the BBC a serious review of cases dropped because of the “rough sex” defence is an “incredibly important” next step for the justice system.
“I’m seeking a meeting with the Director of Public Prosecutions because they’ll need to issue new guidance for cases going forward. I think they should look back – there’s enough evidence of cases where [the CPS] have taken as read the rough sex gone wrong defence and therefore not prosecuted.
“The whole system is failing victims. Rape is such a serious crime, a violation of a woman both physically and mentally, it is important defendants are brought to justice.”
The opportunity to have their cases retrospectively reviewed could result in a new wave of justice for victims whose cases never made it to court.
The campaign group We Can’t Consent To This campaigned for the “rough sex” defence to be outlawed. They found that over the last decade, 60 women in the UK had been killed by men who claimed in court the women were “consenting” to the violence. In 45% of these cases, they found the defence led to a lesser charge such as manslaughter or no crime at all.
While the “rough sex” defence has typically been associated with the murder trials of women, like the killing of backpacker Grace Millane, it also includes assaults involving serious harm.
BBC Three has found four cases in 2020 so far where “consent to rough sex” was claimed in court to charges of rape and sexual assault. And 17 cases over the last five years.
We Can’t Consent To This thinks the justice system will be unable to tell how many cases have been dropped because of the “rough sex” defence. Moving forward they want the CPS and police to start collecting this data and report any failings. “It can’t be left to us”, they add.
The Centre for Women’s Justice say if the government requested the CPS and police review all sexual violence cases dropped because of the “rough sex defence”, this would grant the “exceptional circumstances” needed for victims to appeal their decisions.
Anna Mazzola, a human rights solicitor for the Centre, says “we’re increasingly seeing the CPS refusing to bring cases, even when they appear to be strong cases.
“It would be very helpful if the review was ordered – there is certainly mileage in looking at all of the cases where the CPS or police have decided not to prosecute on the basis that the defendant might claim the rough sex defence and working out whether those cases were correct.
“We’re aware of some very concerning decisions, but those are only cases that have come to us, so it’s quite possible that lots of these cases are going under the radar.”
The CPS said claims a victim had “consented” to an assault does not stop them from prosecuting: “Tackling violence against women and girls has long been a CPS priority, and one we remain strongly committed to.”