The UK government has published an amendment that will abolish any attempt to use a ‘rough sex defence’ in criminal proceedings, when an accused is charged with murder or serious assault. The amendment would rule out “consent for sexual gratification” as a defence for causing serious harm or death, in England and Wales but not, notably, here in Scotland nor in Northern Ireland.

Justice Minister Alex Chalk promised last week to amend the Domestic Abuse bill to make clear such a defence was ‘unacceptable’.

Labour’s Harriet Harman said the new amendment was a ‘milestone’ in ending violence against women and Campaign group ‘We Can’t Consent To This’, which wants to make it the expectation that murder charges are brought against those suspected of killing a person during sex, hailed it as a “victory”.

Draft Domestic Abuse Bill report published - News from Parliament - UK  Parliament
The Domestic Abuse Bill –

The current law says that if someone kills another person during sexual activity they could be charged with culpable homicide (manslaughter) alone, while to murder someone, there needs to have been an intention to kill that person or to cause them grievous bodily harm (GBH) – a charge we do not have in Scotland – our equivalent would be serious assault.

The amendment would invalidate any courtroom defence of consent in cases where a victim suffers serious harm or is killed – but is this the correct way forward?

We have long had, for example, death by dangerous driving ( Road Traffic Act 1988 s.1) but this is not treated as murder because of the absence of intent. The maximum imprisonment term is 14 years, though rarely used, whereas murder carries a mandatory life sentence with the punishment part regularly far in excess of that. For example, Angus Sinclair, convicted of the World’s End murders received 37 years just for the punishment part of his sentence. So this issue of consent is clearly pivotal and is a direct correlation between an offence and a charge and subsequent conviction.

In Scots Law, there is no such defence. The doctrine of volenti non fit injuria was excluded by the celebrated case of Smart v HMA (1975) JC 30 – the ‘square go’ case. The volenti doctrine (literally ‘ to a willing person, injury is not done’) states that if someone willingly places themselves in a position where harm might result and knowing that  some degree of harm might actually occur, they cannot bring a claim against the other party in delict (tort in England). It is generally reserved, for example, to sports – thus the boxer is deemed to have consented to being hit during a bout but not outwith the match. For an illustration of the latter look at the case of former professional footballer Duncan Ferguson who was jailed for headbutting an opponent during a match at Ibrox Park, Glasgow in April 1994. This was not covered by the volenti doctrine, for obvious reasons. In Smart, the mere fact that the parties ‘consented’ to having a ‘square-go’ ( for non-Scots this is a Scottish call to fight by basically setting about each other and throwing punches until one is knocked out) was irrelevant. One fared considerably better than the other but was charged and convicted of assault. However, ‘consent’ here was immaterial and volenti did not apply.

Volenti non fit injuria - YouTube
‘To a willing person, injury is not done’

The issue in Scotland, as regards any possible issue of ‘a rough sex defence’ would have necessarily failed at the first hurdle.

You cannot, therefore, ‘consent’ to being injured or, God forbid ‘killed’. The latter raises questions of assisted suicide and again consent here is irrelevant as it cannot be given. At least for now.

An interesting case arose almost 30 years ago in England. In R v Brown (1993) 2 All ER 75, UKHL 19, (1994) 1 AC 212 , it was held by the House of Lords that you cannot consent to being injured or killed. This case involved a group of men who inflicted injuries on each other during consensual sado-masochistic sex. Rather disturbingly, it involved, amongst an array of certain acts, the nailing of a particular part of the body to a wooden board. Irrespective of the ‘desire’ (sexual or otherwise) of the individuals concerned, this was in many ways, England’s ‘Smart’, though somewhat more serious and arguably fairly deviant. The ‘my victim consented’ is, therefore, no defence at all.

In reality, the phrase ‘a rough sex defence’ is actually a misnomer. Various campaigners have adopted this rather misleading and in my submission inaccurate term as a result of some well publicised cases, including that of Grace Millane (below) who was strangled at the hands of her (unnamed) boyfriend in New Zealand when he attempted to use the ‘rough sex defence’ by effectively stating that a sex game went wrong/too far, resulting in her death. The attempt was rejected, and he was unanimously convicted of her murder.

Grace Millane murder: man jailed for life for killing of UK backpacker |  World news | The Guardian
Grace Millane, killed in December 2018 –

Some male perpetrators have avoided a guilty verdict (for murder) after using the defence which effectively states on their behalf that the fatal injuries were as  result of consensual sex that ‘went too far’.

This causes some confusion in the law. If consent is not a defence ( Smart v HMA, R v Brown et alia) why then are individuals, male individuals, using or ‘pleading’ this defence when, in reality, there is no such defence available?

In Scots Law, murder is as defined by ‘Macdonald’ who has stated that it is either an ‘intention to kill’ or committed by the implementation by an accused of ‘wicked recklessness’ ( J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn, Walker J., & Stevenson D J.,(1948) 89). But in one of the most controversial judicial decisions in recent times, (the then) Lord Justice-General Rodger stated that Macdonald’s interpretation was incomplete and that , as he said, ‘just as the recklessness has to be wicked so also must the intention to be wicked’ – (Drury v HMA (2001) SLT 1013 at para 11). If the Crown fail on either of these ‘conditions’, then it is unlikely they will succeed in sustaining a charge of murder which would then, in all likelihood, be replaced by ‘culpable homicide’ / (manslaughter) – effectively murder without either intent or (wicked) recklessness.

A Practical Treatise On the Criminal Law of Scotland: Macdonald, J H. A.:  9781377534862: Books
The ‘Macdonald definition’ of murder in Scots Law –

It is, however, difficult to see where a ‘rough sex defence’ could possibly fit in Scots Law. There may be some instances in the English legal system where a defendant / (accused) may claim to have ‘intended’ some harm but that their actions fall short of intending to cause serious harm and certainly not intending to kill. In Scotland, even if ‘intention’ was difficult to prove, such actions ( ‘strangulation’ as per Millane, above) would surely be seen as (wickedly) reckless and therefore sufficient for a murder conviction. Even the theory as per the English system is nebulous, to say the least but it is here, as I see it, that a ‘rough sex defence’ becomes potentially relevant and certainly the courts may face a dichotomy. The jurisdictional issue is critically important and I am largely satisfied that the primary reason that this amendment has not been applied to Scotland is because it is simply not necessary.

Notwithstanding this development ( and amendments to the Domestic Abuse Bill), it appears that it may actually continue to be used : but simply under a different guise.

An accused / defendant may attempt to say that, whilst it appears as though the injuries on the victim may be consistent with an intention to inflict serious harm, they did not have that intent : that (necessary) mens rea, in the absence of any further alternative element of (wicked) recklessness. In the context of BDSM, one can see the difficulties here for the law, without condoning the behaviour.

The issue of extreme awkwardness and difficulty is to attempt to extricate an attempt to say that the victim was consenting from not having the hitherto necessary ‘intent’ (mens rea) for a conviction. In Scotland, the use of ‘wicked recklessness’ has secured many a conviction that otherwise may have been ‘downgraded’ due to a lack of intent.

What Priti Patel has done is really to enshrine legislatively what already is part of our common law – one cannot give consent to being assaulted, sexually assaulted, injured or, of course, killed.

Perhaps a way to circumvent this issue would be the creation of a new offence – ‘death by dangerous sexual activity’, for example and analogous to ‘death by dangerous driving’. Although I suspect that this would merely result in a conviction for culpable homicide under a new name.

Perhaps an Americanised system is the way ahead so we could categorise ‘murder’ ( 1st degree, 2nd degree and so on).

Ultimately, whilst the move by the government is admirable, I am unconvinced as to what it actually may achieve. Yes, it formally removes the use of such a defence but, certainly down south, if a jury is unconvinced as regards ‘intent’, they will not return a guilty verdict for murder.

Perhaps this is an area (a pretty uncomfortable one) for education, reform and acceptability even in such morally questionable times.

An exceptionally emotive and difficult subject to broach – but this is one of the primary reasons I do this.