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Does UK law have a loophole that allows men to get away with hurting or killing women by claiming their harm was the result of consensually rough sex? 2019 saw the UK grapple with this question in the wake of R v Broadhurst (2018).

The facts of this case are that victim Natalie Connolly died as a result of 40 separate injuries inflicted by defendant John Broadhurst, including arterial vaginal bleeding, a fractured eye socket and bleach burns to her face. Broadhurst claimed in court that Connolly’s death was the result of rough sex gone wrong, and that Connolly had consented to her injuries. Many were shocked by the CPS’ choice not to seek a murder conviction, but one of manslaughter, of which Broadhurst was found guilty. They were doubly horrified by the short sentence Broadhurst received of less than 4 years, of which he will serve only half of in prison and the rest on licence in the community.

Activist groups have placed responsibility for the CPS’ failure to pursue a murder conviction and Broadhurst’s subsequent short custodial sentence, at the door of the ‘rough sex defence’. They argue that Broadhurst’s claims that any injuries Connolly sustained were purely consensual and occurred during sex created a path to a lenient legal outcome, and thus justice was not procured for Connolly.

Unsurprisingly, the prospect of a ‘rough sex defence’ existing in UK law has prompted political and public outrage. Figures such as Labour’s former solicitor general Harriet Harman have demanded an end to it, and in December 2019, Prime Minister Boris Johnson promised to re-introduce the Domestic Abuse Bill and ban the ‘rough sex defence’ within statute. Unfortunately, the political and public response to this appalling case, though well-intentioned, has been misguided and based upon fundamental misunderstandings of the UK law around consent and harm.

Most importantly, the very concept of a ‘rough sex defence’ has already been clearly and authoritatively prohibited in UK law. Consent to masochistic sex is no defence to a charge of Grievous Bodily Harm, and certainly not to a murder charge; this has been repeatedly provided in a number of cases including R v Boyea (1992), R v Brown (1994) and R v Emmett (1999), and recently authoritatively restated in R v BM (2018). Indeed, during Broadhurst in his sentencing remarks, Mr Justice Julian Knowles stated: “The authorities are clear that a person cannot in law consent to being subjected to actual bodily harm or grievous bodily harm for the purposes of sexual pleasure…”.

If the ‘rough sex defence’ is not to blame, why was the outcome of Broadhurst so morally unsatisfying? Ultimately, it came down to a question of evidence. The CPS did not seek a murder conviction because proving Broadhurst intended to kill Connolly presented too high an evidentiary burden. The levels of alcohol and cocaine in Connolly’s blood were so high that it was impossible to prove whether it was Broadhurst’s violence that caused her death or this toxicity. The evidentiary burden in criminal cases is extremely high — ‘beyond reasonable doubt’ — and the CPS simply did not think they could definitively prove that Broadhurst murdered Connolly, during consensual sex or not.

The chillingly short length of Broadhurst’s sentence also has nothing to do with his protests that Connolly consented to the injuries she sustained from him. After the CPS decided that a murder charge was not viable, their only option was manslaughter, for which British judges generally impose a sentence of between two and ten years. Furthermore, by pleading guilty to the manslaughter charge, Broadhurst earned himself an automatic sentence reduction; the judge in this case followed sentencing guidelines exactly. Had the CPS attempted to pursue a murder charge regardless, the outcome would likely have been Broadhurst being found innocent and released.

The apparently unjust outcome of Broadhurst is the product of thorny questions of evidence, rather than a legal system that is soft on men who kill women and subsequently claim they asked for it during sex. The ‘rough sex defence’ is already prohibited by common law. Putting it into statute as activists have pushed for would be a purely cosmetic change in law and not actually have any impact on the outcome of cases like Broadhurst.

If we as a nation want to send a message to those who kill their partners during what they allege is consensual rough sex, there are better legal tools at our disposal. The maximum custodial sentence for common assault is six months, but for racially aggravated common assault, it quadruples to two years. Treating racism as an aggravating factor that entails serious legal consequences is a statement that we have decided to make as a society. The creation of an aggravating factor in cases of manslaughter, murder or assault as a result of rough sex would make a similar statement and be more likely to secure justice for victims such as Connolly, in comparison to banning a fictitious legal defence twice over.

Phoebe Arslanagic-Wakefield is a researcher at Bright Blue.