‘We Can’t Consent to This’: R v Brown and the Domestic Abuse Bill

‘We Can’t Consent to This’: R v Brown and the Domestic Abuse Bill

Bethan Cowlam and David Hardstaff consider additions to the Domestic Abuse Bill and ‘consent for sexual gratification’ as a defence

Last week Justice Minister Alex Chalk stated: “No death or other serious injury — whatever the circumstances — should be defended as ‘rough sex gone wrong’”. The so-called ‘rough sex defence’, also referred to as ‘consent for sexual gratification’, has been in the press constantly over the past few years due to highly publicised cases such as the murders of Grace Millane in 2018 and Natalie Connolly in 2016. But, are proposed changes to the law going to make any substantive difference, or are they merely a political gesture?

The ‘We Can’t Consent to This’ campaign reported that in 45% of cases in which a man kills a woman during a sexual act and claims that she gave her consent, the defence of ‘consent for sexual gratification’ succeeds. The result is instead a prosecution for a lesser offence (often manslaughter) or no charge at all.

In response, the Government have published a new clause to the Domestic Abuse Bill which will reach the report stage in the House of Commons yesterday (6 July). The Members’ explanatory note to the amendment states:

“This new clause legislates for the principle (established in the case of R. v. Brown [1993] 2 W.L.R. 556) that, for the purposes of determining whether someone is guilty of an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861, a person may not consent to the infliction of serious harm for the purposes of obtaining sexual gratification.”

Despite the headlines about the amendment to the bill, little will in fact change. The principle confirmed in R v Brown [1993] has a long-established common law footing: an individual cannot consent to serious harm. The amendment simply codifies this principle into statute. In other words, there is nothing new about a defence of ‘consent for sexual gratification’ not being available, as it is not possible to assert that inflicting serious harm was consensual.

There appears to have been a misperception by many regarding how defendants in such cases have asserted a defence. An argument that the harm was caused by ‘rough sex gone wrong’ does not in of itself form the defence; it instead goes to the fact that, if an individual believed there was consent, this indicates a lack of intent to harm; that is in fact where the defence lies.

The law remains that, in order to properly be convicted of murder, an individual must have intended to kill or cause serious harm. It is within the law for a defendant to assert a defence to a charge of murder based on a lack of intention.

It is understandably a sensitive area of the law, especially considering the rise in cases in recent years, yet it is tricky to see where impactful change could be made. The creation of a specific offence to cover harm caused during sexual acts is unlikely to substantially differ from other existing offences, such as manslaughter, assault, and a range of potential sexual offences. In addition to the wide range of available offences, judges have significant discretion under existing sentencing powers to treat particularly violent or sadistic offences as aggravated and to reflect this in the sentence passed.

One meaningful change which could be made is to the legal protection given to the deceased and their families. Presently, anonymity and restrictions on evidence of sexual history applies only to live complainants. Grace Millane’s parents had to endure their deceased daughter’s sexual past being publicly explored in Court. Anonymity for defendants facing certain allegations should also be considered, both in the interests of ensuring a fair trial (as is the case in New Zealand) and to avoid irreparable damage to reputation prior to any finding being made.

Perhaps the real value of the proposed change to the law is the message it sends out. Most lawyers will remember the first time they heard the facts in R v Brown. Non-lawyers will not be familiar with the case. For the law to have a meaningful impact on society and how we behave towards each other, it should be clear and universally understood. The Domestic Abuse Bill seeks to achieve this, starting by defining domestic abuse itself. Strictly speaking, there never was a ‘rough sex defence’ to abolish. However, at least the limits of the current law may soon be better understood.

About the authors:

Bethan Cowlam is a trainee solicitor, currently specialising in serious and general crime. Her prior experience includes regulatory investigations and financial crime.

David Hardstaff is an associate solicitor at BCL specialising in criminal and regulatory law. He advises individuals and companies in relation to controlled drug licensing and AML/Proceeds of Crime considerations in the context of the domestic and international cannabis market. He has particular experience in advising and representing individuals accused of sexual offences, drugs offences and offences involving violence. He is an experienced police station representative and advocate and represents clients in a broad range of proceedings at the Magistrates’ Court, Crown Court and Court of Appeal.