The ‘rough sex’ defence is indefensible

The Guardian, Friday 22 November 2019

Grace Millane’s murder trial shows how it’s being used in courtrooms to justify unconscionable violence against women

We all know that it is not unusual to hear a pack of lies told in court. Defendants will say anything to avoid a prison sentence, especially when they’re facing serious charges. But the lies told by the man convicted in Auckland of the brutal murder of a British backpacker, Grace Millane, have exposed something profoundly disturbing about the way women are treated in modern criminal justice systems.

Many people in the UK and in New Zealand have followed the trial with visceral horror, disturbed by the intense focus on the victim. The 27-year-old defendant, who was found guilty after a trial lasting three weeks, didn’t deny killing the young woman he had met on a Tinder date. But he claimed that she died accidentally after she asked him to choke her during consensual sex.

There was nothing to support the defendant’s claims about what happened on the night in question. Indeed they were contradicted by forensic evidence, which suggested he must have deliberately compressed Millane’s neck for between five and 10 minutes. It was bad enough that her parents, David and Gillian, had to hear this dreadful account of their daughter’s final moments, along with the revelation that her killer took photos that displayed a “morbid interest in dead women’s genitalia”. But they also had to listen to a defence that effectively shifted the blame from the defendant, suggesting that Millane died from a toxic combination of alcohol and inexperience of BDSM practices.

Let’s be clear about what we are witnessing here: misogyny has become so mainstream that men are seriously asking juries to believe “she asked for it”, even when what she supposedly “asked” for has ended in death. It is victim-blaming on the most brazen scale and the sole “evidence”, in virtually all of these cases, is the word of the defendant. What’s euphemistically known as the “rough sex” defence is being used more and more often in the UK, up by 90% over the past decade, according to one estimate. The website We Can’t Consent to This has found 59 women killed in so-called “consensual” violence in the UK, and the defence was successful in almost half of the 18 cases that came to trial in the past five years, leading to a lesser verdict of manslaughter or an acquittal.

Grace Millane’s killer will not be sentenced until February. His identity continues to be protected, while the reputation of his victim – a young woman who had the misfortune to meet a killer on the eve of her 22nd birthday – has been trashed around the world. No one who has followed the case could be unaware of the way in which her supposed sexual history has been laid bare in the courtroom, including claims about her interest in BDSM that she was not there to challenge.

It is painfully reminiscent of the way rape victims used to be treated in British courtrooms. For decades, defence lawyers would use the complainant’s sexual history, what she was wearing and how much she had had to drink in an attempt to discredit her testimony.

That isn’t supposed to happen these days, but it certainly hasn’t improved the conviction rate in rape cases, which has fallen to its lowest level in a decade. The context – punitive public attitudes towards victims, combined with a willingness to believe the most outlandish claims made by perpetrators – hasn’t changed. If anything, it has got worse, leading to fewer prosecutions. And it’s now affecting not just rape cases but incidents in which women have lost their lives at the hands of men they trusted to have sex with.

How on earth did we end up here, with defendants asking us to believe that they accidentally killed women who wanted to be strangled or beaten? It’s the inevitable product of a culture that habitually treats women as untrustworthy, giving a sympathetic hearing to any number of violent perpetrators who portray themselves as victims.

Thankfully, the jury in Auckland didn’t fall for it. But it shouldn’t be happening in the UK either: as long ago as 1993, the House of Lords ruled that a defendant can successfully argue that his victim consented to serious injuries.

The increasing use of the “rough sex” defence shames this country. This isn’t about “she asked for it”. It’s about a handful of violent men telling outrageous lies – and some of them are getting away with murder.

• Joan Smith is a columnist and the author of Misogynies


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