Prosecutors declined to pursue charges against a man accused of assault because of fears he would claim it was consensual sexual behaviour — a decision that will intensify pressure to outlaw the “rough sex gone wrong” defence.
The woman involved said she had been physically and sexually assaulted but the Crown Prosecution Service (CPS) told her that “the suspect could say you consented to these assaults”.
The Labour MP Harriet Harman wrote to Max Hill, the director of public prosecutions, yesterday asking him to review the case. “If that’s what is going to happen, there could be no prosecutions of sexual offences at all, because in every case the defendant could say ‘she wanted it’,” Harman said.
MPs and campaigners want to ban what has been called the “Fifty Shades” defence, in which men who admit to causing fatal injuries to a woman claim they resulted from a consensual sex game. The name comes from the bestselling novels about a couple involved in bondage and submission.
A key pillar in the defence of the killer of the British backpacker Grace Millane, strangled in New Zealand last year on the night before her 22nd birthday, was that she enjoyed “rough sex”. He was found guilty of murder.
There is cross-party support for outlawing the defence, with Harman leading the parliamentary campaign alongside the Conservative MP Mark Garnier. The pair have backed an amendment to the Domestic Abuse Bill, which will go to a bills committee this week, to try to prevent men who have committed murder escaping justice by using this defence. Ministers have pledged to look into it.
Campaigners led by the Centre for Women’s Justice (CWJ), a legal charity, also want the bill to make strangulation a specific offence. Nogah Ofer, a solicitor with CWJ, said strangulation was a “red flag” that indicated victims of domestic abuse were at the highest risk, but “police often minimise the crime as it doesn’t leave many, or sometimes any, visible signs . . . so perpetrators are only charged with common assault”.
The letter from the CPS to the alleged victim in the assault case stated: “A prosecution could follow in relation to this offence, but the courts have shown an interest in changing the law so that the suspect could say that you consented to these assaults. This would be difficult to disprove,” citing the specifics of the case.
It went on: “If I prosecuted this offence it is likely to lead to lengthy legal proceedings in which the background to the case would have to be visited as far as the sexual practices that led to and accompanied the infliction of the injuries. In my opinion it is not in the public interest to pursue this charge.”
Since 1972, men have used “rough sex” as a defence following the deaths of 60 women, according to the campaign group We Can’t Consent To This. Just under half of the men did not face a murder charge.
The CPS said: “We carefully consider all the facts of every individual case before making a charging decision. If we are satisfied that the legal test for a criminal offence is met, then we will always prosecute.”