The truth about the government’s claims to have “ended the rough sex defence”

Following a lot of media coverage of this issue, I wrote a Twitter thread looking at the law behind it. I’ve reproduced it here in case it’s of interest.

Postscript: Unforgivably, I suggested in the thread that R v Brown was a Court of Appeal decision when, as every first-year law student knows, it was a House of Lords judgment (the predecessor to today’s Supreme Court). The link, should you wish to read the gory case in full, is here.

5 thoughts on “The truth about the government’s claims to have “ended the rough sex defence”

  1. I feel like part of the problem, in the public’s eyes, is that if you are ultimately convicted of manslaughter if feels like you ‘got away with it’, or like your only crime was carelessness.

    That doesn’t necessarily correspond with the legal reality, but I think it’s the case for some people.

    Some form of renaming offences could actually help here: something that doesn’t have the associations of carelessness/negligence that manslaughter does in the public mind.

    Jimifletch’s suggestion seems quite narrow, but ‘Death through Reckless Behaviour’, for example, might be an improvement. Perception matters.

  2. Good article but some of the screenshots of the twitter thread are too small to easily be read. It would probably have been better for you to have copied and pasted the text itself.

  3. Well we could go the US way and have 256 degrees of murder…

    It’s established law from consideration of fishhooks in foreskins that it’s impossible to consent to criminal injury…. What’s required is examination of the evidence as to the events support what conclusion…

    a) Stuff was done within agreed protocols but an unplanned event (MI, stroke, shock, pulmonary collapse…etc) intervened

    b) accused was careless as to the wellbeing of their subject

    c) accused was reckless as to the wellbeing of their subject

    d) accused maliciously inflicted injury/death on their subject

  4. Problem is: as more and more of these cases are known about… and the ‘defence’ spreads, as it is doing, fewer and fewer of these men can be believed..

    ‘Oh no, I never heard of managing to kill someone with risky violent sexual behaviour’ sounds a bit unlikely now, does it not? In 2020?

    I had never heard of rough sex, 20 years ago, Safe words, ditto., Everyone has heard of it now. Common parlance. All the comedians joke about it, they have livings to make, they road test their material, so they are sure 99% of the audience ‘gets it’.

    All these men are liars.

    I think reality ought to intrude into the hearings in these murder cases.

  5. You say (correctly, I’m sure) that no-one can legally consent to being injured but I wonder how that relates to combat sports participants. As a martial artist (several years ago), I understood and accepted that my participation came with the risk of injury – both sustained and inflicted. Consent was certainly presumed and the activity could not have proceeded without that. What, if any, protection from prosecution is there for participants? How do boxers avoid prosecution for the many incidents of very serious injury and worse? A very interesting article/thread – thanks.

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