Women’s Rights groups are moving in the United Kingdom to ban the use of the rough sex defense in criminal cases. Recently, the defense was used in the murder trial of Grace Millane, 22, who was killed on a backpacking trip to New Zealand. The banning of a defense raises troubling questions as criminal defendants, who may face life imprisonment or death in some countries, being denied the ability to present their own account to jurors — an account that they maintain is true.
Notably, the defense was not successful in the New Zealand case and is often rejected by jurors. The first time many people heard of rough sex practices, let alone the defense, was the case of Robert Emmet Chambers Jr., who became known as the “Preppy Killer” after the strangulation death of Jennifer Levin, 18, in Central Park. He claimed it was an accident during rough sex and later was allowed to plead to a manslaughter charge.
Women’s rights groups insist that the defense normalized violence against women. The group We Can’t Consent to This claims that men avoided charges of murder in more than one in three of 60 killings of women and girls by relying on the defense.
Accepting this statistic, however, does not alter the concerns from a criminal justice standpoint. The defense may be successful because there was a basis for using it. Rough sex or erotic asphyxiation (EA) appears a common practice between consenting partners. It can also be clearly used as a way of shielding assault and violence against women. However, banning the defense would deny defendants the right to present such facts to the jury, which (if history is a measure) is likely to be skeptical of the defense.
There is also a concern that, once we start to ban certain defenses, the appetite for silencing defendants can become insatiable. We can manipulate trials by preventing defendants from claiming certain defenses. The jury would never know that the defendant told police that this was an accident of rough sex. Without such a defense, the scene looks like one of cold blooded murder.
The author of a legislative measure to ban the defense, Parliamentarian Harriet Harman is quoted as saying “Men are now, literally, getting away with murder by using the ‘rough sex’ defense.” But what if it is true? Clearly it is possible that such a death can occur by accident. Various sites note that injury and death can occur easily if EA is done incorrectly. Moreover, EA is used by both genders.
I share the concern that rough sex defenses can be used to hide violence against women, but that is a view that can be presented to a jury. Banning the defense over a widely used practice would leave many defendants as effectively without a defense in a murder case.