By Alison Cronin, Jamie Fletcher and Samuel Walker, Law Academics, Dept of Humanities and Law, Bournemouth University.

1. Introduction

The government has announced its forthcoming Domestic Abuse Bill will include a provision preventing consent as a defence to murder in 'sex gone wrong' cases. These are cases in which sexual activity includes physical force which results in the death of one of the participants. In response, key  campaigning group We Cannot Consent To This has been cautious, stating that the government still need[s] to deliver” and that we don't know yet what the government will propose”. This blog argues that in order to avoid a major legal pitfall, campaigners need to articulate the problem and their aim more clearly, engage with the current law and adopt the legal terminology that will effectively make their point. It is suggested that this could amount to a momentous change in criminal law that would see justice for victims who die as the result of violent sexual attacks. In order to achieve this, campaigners must move on from their discussion of defendants using a defence, which is not in law technically correct, and towards reform of the offence that the defendant has committed.


2. Misunderstanding the problem

The main problem is a misunderstanding of the part played by consent in these cases, a failure to comprehend the current legal architecture relating to the fatal offences and a fundamental mischaracterisation of the 'rough sex gone wrong' conduct. To suggest that consent is a defence to murder in the 'rough sex' or in any other context wholly mis-states the law. The consent principle, set out in the case of R v Brown [1994], is well-established in the criminal law and means that a defendant cannot escape liability for murder by claiming that the victim consented to the use of force. Reports suggesting that killers have therefore escaped justice by relying on this 'defence' to murder are simply wrong. Cases whereby the defendant has been found not guilty of murder but guilty of manslaughter, or whereby a plea to involuntary manslaughter is accepted, do not involve reliance on any potential defence.  The determinative issue in cases where an activity results in fatality, sexual or not, is whether the defendant had the intention required to establish murder rather than manslaughter.

Consequentially, even if the campaigners are successful in having Browns rule enshrined in the Domestic Abuse Bill, this will not prevent defendants from claiming they do not satisfy the definition of the offence they have been charged with. To effect any reform, and not waste this golden opportunity, campaigners must therefore shift their focus from the defence of consent to the issue of the substantive offence. If campaigners continue to talk of preventing a defence, they will fail to address the real problem, the lack of an adequate offence with which to charge defendants in these circumstances.  


3. Getting to grips with the real problem

This leads to the real problem that campaigners seek to address - the current law of murder. To be guilty of this offence, it must be proven that the defendant performed the act that resulted in the victims death and, crucially, that the defendant either intended to cause death or grievous bodily harm. There are three points to make in relation to the culpable state of mind for murder. Firstly, intention usually means that the outcome is the aim, purpose or desire of the actor but the law also accepts that intention may be found where the actor foresees the particular outcome as a virtually certain consequence of his act, even if he does not desire it, and carries on with his activity regardless. Secondly, the law is controversial in that it creates constructive” liability where the defendant did not intend to kill (or foresee death as a virtual certainty) but can also be found guilty of murder if he intended to cause really serious injury (or foresaw it as a virtual certainty), even if that injury is not usually life-threatening. Thirdly, culpability is a subjective issue and a defendant cannot be found guilty because a reasonable person would have thought that death or really serious harm was virtually certain.

Arguably the most serious offence, aside perhaps from treason, murder is of such wide scope, with the element of constructive liability described above, that it already attracts considerable criticism. In the context of rough sex resulting in death, anumber of factual circumstances might exist. A defendant may, for example, harbour a desire to kill his partner and commit the fatal act intentionally during the course of sexual activity. A defendant might also, for example, engage in a sexual activity that he realises is virtually certain to cause a really serious injury to his partner but he does not intend to kill. In both cases, the resulting death of the partner would attract liability for murder such that the label
murderer”, and the mandatory life sentence this requires, can be imposed on both the archetypal serial killer and the unlucky” individual who envisaged serious but not fatal harm in the course of sexual conduct. To be clear, when a defendant claims that the fatal activity was consensual he (or she) is not raising some special rough sex defence”, which does not exist, he is providing a context for his assertion that he lacked the mental state required for a murder conviction. It is a matter for the jury, in view of all of the evidence, to decide whether or not they believe the defendant and it is, of course, for the prosecution to prove its case beyond reasonable doubt.

It would seem then that the campaigners for reform are not targeting either of the above scenarios from which a murder conviction could flow. For various reasons, including the stigma of the murder” label and the mandatory life sentence, where death occurs in circumstances where the defendants state of mind is less heinous, and there is no intention to kill or to cause serious harm, liability is classified as manslaughter. This offence can be categorised as gross negligence manslaughter, unlawful and dangerous act manslaughter or reckless manslaughter. Where a death occurs during rough sexual activity, consensual or not, and an intention to kill or to cause really serious harm cannot be proved, the appropriate charge is therefore one of manslaughter under one of the three heads. It is likely that in most cases of rough sex gone wrong” it will amount to manslaughter under at least one of the categories as the law currently stands. Again, a defendant is likely to want to explain his or her behaviour by reference to consensual rough sex” but it is no more a defence in this context than it is to an indictment for murder. Unlike murder, the sentence for manslaughter is not a mandatory life-sentence but discretionary and the sentence imposed on conviction will reflect the moral blameworthiness of the defendant. 

Since the rough sex consent defence” does not exist and prosecutions for manslaughter are being brought where considered appropriate to the defendants  culpability, it can be deduced that the substance of the campaign, albeit mischaracterized, is essentially to expand the law of murder. However, to expand the law of murder to encompass any killing during the course of sexual activity has multiple objections, some of which are briefly outlined here. To expand liability for murder such that culpability is not based on the mental blameworthiness of the defendant, but on the activity itself, expresses a moral judgment about that activity. Morality is a slippery concept and there has been a vigorous debate through the decades that the enforcement of morality alone is not a proper aim of the criminal law.  In the context of sexual behaviour this expands to a consideration of the distinction between spheres of conduct that should be classified as private, and should not be subject to intervention, and conduct that is primarily violent and that therefore justifies the involvement of the criminal law on, for example, paternalistic grounds. The decision in R v Brown, on consent to harm, saw the paternalistic view prevail in the face of cogent counter arguments based on individual autonomy and the libertarian perspective. To impose liability for murder on the basis of the character of the behavioural context of the death would, by analogy, open the door to an unprincipled imposition of liability for murder for any other conduct that results in a loss of life.

It would violate arguably the most basic right of the individual, the autonomy to decide how to lead ones life. The lifestyle autonomy principle has come to the fore in the twentieth century with political priority given to the need to address public negatives, for example affecting women, as an important social and ethical development. Parliament must therefore tread a fine line balancing respect for autonomy and reducing the harm that will be incurred in consequence. With such important principles at stake, any change to the law demands a thorough debate and a principled approach. To convict for murder without proof of the requisite intent would drive a coach and horses through the principle of fair-labelling in the sex gone wrong” cases, principles of proportionality and fairness in sentencing and could serve to reduce the perceived gravity of the murder offence where the label is well-deserved. Furthermore, the campaigners who go as far to suggest that defendants should be prosecuted for murder even if death is the bad luck” result of a genuine accident are advocating in effect the imposition of a no fault” murder offence. This would reduce it to the level of, for example, a minor traffic violation – yet one that would attract a life sentence for the unlucky”.

4. Bespoke criminal offence

Ultimately, if campaigners want the law to express something of particular significance about death occurring as a result of sexual activity going wrong, where there is no intent, it may be more appropriate to enact a bespoke offence. It is suggested that a causing death by dangerous sexual activity” offence with a statutory provision that consent to that activity is not a defence, thereby affirming the common law, would satisfy the expressive function without destroying the very fabric of the criminal law and its conceptual underpinnings.   This offence would siphon homicides not reaching the mental culpability for murder involving violent sexual behaviour from the three categories of manslaughter addressed. There is already precedent for a separate manslaughter offence with death by dangerous driving. In addition, this would allow campaigners to fully consider and advocate for what they want this offence to encompass and convey. A bespoke offence will provide flexibility  in framing the desired level of mental culpability required to commit the offence, how that mental culpability should be assessed (whether subjectively or objectively), and the punishment attached to conviction.  Such an approach would afford campaigners a much better avenue for ensuring justice for those killed as a result of violent sexual behaviour.