Domestic Abuse Bill

Written evidence submitted by We Can't Consent To This (DAB20)

We Can’t Consent To This Evidence for the Public Bill Committee: Domestic Abuse Bill 2019-21

1                                                                                                       Summary        

 

1.1 We Can’t Consent to This welcomes the opportunity to provide evidence to the Public Bill Committee’s on the Domestic Abuse Bill: 2019-21. Updated domestic abuse legislation is long overdue and we recognise that in its current form there is much that this vital bill will achieve.

1.2 We believe this bill can, with amendment, also begin to end the use of "rough sex" claims to blame women for violence done to them, and ensure that strangulation is prosecuted as the serious assault it is.

1.3 Sixty UK women have been killed in violence that it’s claimed they asked for, and the so called "rough sex" defence also used in non-fatal assaults of women, all of whom say they did not consent to this. Strangulation is prosecuted with astonishing lightness, if at all. Two million UK women have suffered strangulation assault by sexual partners. The existing law is not working. The time to change this is now, in this Bill.

1.4 We ask that the committee adopt amendments NC4-NC11 to the Bill.

2 Who are     we?      

 

1.5 We Can’t Consent to This researches prevalence of "rough sex" defences and campaigns against the normalisation of violence against women and girls. We were formed in response to the inexcusably short sentence given to the man responsible for the death of Natalie Connolly and were the first to research and publish the true extent of rough sex claims in both homicides and in non-fatal assaults in the UK.

3 What are ‘rough sex’ defence s ?          

 

1.6 "Rough sex" defences are cases where violence is claimed to be consensual - part of sex - by the person accused, at some point in their contact with the criminal justice system. This violence might be in a homicide or non-fatal assault. The victim may also have experienced sexual assault, including rape.

1.7 These are cases where violence, including fatal violence, is explained away as "rough sex", a "sex game", or "BDSM" "gone wrong".

4 What do we want?          

 

1.8 We are calling for an end to the use of rough sex claims to blame women for the violence that’s done to them, and allow perpetrators of to escape justice We believe that this can only be achieved through change in the law. We are enouraged that the Government is conducting their own review and will report back with proposals by the time this Bill reaches Report Stage.

1.9 Our response lays out our evidence in support of amendments NC4 - NC11 of the Domestic Abuse Bill, and further areas where the Government may consider directing their attention.

5 Why are amendments needed?          

 

NC4 No Consent to Death       

1.10 The claim that a dead woman consented to violence has been made in 60 UK homicides [1] so far. In 45% of these, the "rough sex" claim worked – leading to a lighter sentence, a lesser charge, or in some cases the death not investigated as a crime at all. Using this claim, offenders are getting away with little to no punishment for terrifying acts of violence. The accused can admit to causing death and yet get away with murder. How can this be right?

1.11 Natalie Connolly was 26 when she was killed by her partner at their home. Natalie died with terrible injuries, and her partner claimed her beating and internal injuries were from consensual rough sex. Natalie’s dad Alan said "Natalie is no longer here to tell us what he did to her or why he left her where he did. But there is absolutely no way she would have consented to what she was put through. One thing is for certain - Natalie didn't fantasise about being killed or leaving her daughter without a mum that night. Like so many other women, she didn’t consent to being brutally injured in the name of sex. It should have happened long ago but there is no way that a man should be able to bat away brutal sexual violence as just an ‘accident’." [2]

1.12 Since Natalie’s death in 2016, 12 other UK women have been killed in what was claimed to be rough sex.

1.13 One was 21-year-old Laura Huteson. In 2016, she had her throat cut by a man who had strangled her earlier that day, and who was prosecuted only for gross negligence manslaughter, rather than murder. He claimed Laura had consented to have the knife held against her throat. He was sentenced to 6 years by the judge, who said he showed remorse and had killed Laura "by stabbing her through the neck during bizarre and violent sadomasochistic sexual activity". As Laura’s sister Cara said "How can someone believe that it’s manslaughter?" [3]

1.14 Change is needed now, in this Bill, because:

1.15 In the five years from 2014, 20 women and girls have been killed in claimed rough sex. Of the 20 women killed, only 9 men were convicted of murder, 9 were convicted of manslaughter, and one case resulted in no conviction.

1.16 32 of the women were killed by current or former partners – most of the killers (at least 21) had a history of domestic abuse against the woman.

1.17 Without change, more men will use this defence: we believe that men who use these defences do so because they see them working. Those accused of sexual and sadistic murders have particular incentive to recast sadistic sexual violence as consensual, as these have a 30-year life-sentence starting point. In the last Femicide Census [4] there were 8 homicides of women with sadistic conduct: 6 of the men used a rough sex claim in defence.

1.18 This existing case law should prohibit the success of these claims in killings, but it does not. Making statutory provision will send a clear message that these claims will not be accepted in defence.

NC5 No Consent to Injury         

1.19 Consent to violence is also claimed in non-fatal assaults, where women have been said to have consented to violence including waterboarding, wounding, electrocution, strangulation and asphyxiation, slapping, beating, punching and kicking. One woman was claimed to have consented to having a shotgun fired in her vagina. There are 115 UK non-fatal assaults in our research – all defendants were male, and 114 of the victims were female. Between November 2019 and March 2020 alone, 15 women were victims in UK court cases where "rough sex" claims were made. All women in these cases said they did not consent to the violence.

1.20 The 1993 Brown case law [5] - which concerned gay men in consensual sadomasochism and said that consent is not a defence to more than transient or trifling injury – is not fit for this purpose. It is rarely referenced in these cases, does not speak to the gendered dynamics and violence against women at the core, has been undermined by further decisions. And it has long been argued by students of law to be outdated, and ripe for reform, based on the idea that this might inhibit those who wanted to consent to violence in their private lives. We can now confirm that the CPS are not prosecuting violent non-fatal assaults which could be claimed to be consensual, as they too believe that this case law will be overturned.

1.21 Some judges warn defendants that consent is no defence, but give credit in sentencing for "a belief" that the woman consented, even where she says she didn’t:

1.22 Wright [2015]: the judge warned consent is no defence, before agreeing the defendant had believed that "everyone was consenting" and sentencing him to a community order. The victim – an 18-year-old girl – had been subjected to an extended assault after which she sought hospital treatment.

1.23 Wilkins [2018]: the judge told the accused: "the two of you behaved very irresponsibly that day and night, then you started beating her up. To begin with you did not even realise that she was not consenting, I accept you were horrified when you did" and that a custodial sentence would not be appropriate. The victim had "a bloodied nose, a swollen left cheek, red marks around her neck, hair pulled from her scalp and a minor shoulder dislocation."

1.24 In many cases, men are not being charged with acts of violence they have admitted to. Even where they are charged, the defendant may present a lengthy defence that she consented, and often juries do not convict:

1.25 Lock [2016]: his defence to assault causing ABH was that she consented to being beaten with a rope, inspired by "Fifty Shades of Grey". Although consent should have been no defence to this ABH charge, evidence was given on her sexual history, and his defence set out that "the issue is 'did she consent and did Mr Lock believe that she consented?' Is this an assault any more than a mistimed tackle in football?". Lock was found ‘not guilty’ by the jury. He was later jailed for assaulting his new partner - his seventh domestic violence conviction.

1.26 In our research, men with a domestic abuse history who are accused of beating or wounding their partners, will often tell police that the woman’s injuries were in fact due to rough sex. This claim is reported in the news, along with her name, even where these men plead guilty to the assault at court.

1.27 The existing case law is not up to the task of dealing with violent assaults of women who did not consent. We must have statutory provision as in amendment NC5.

NC6 Consent of Director of Public Prosecutions         

NC7 Director of Public Prosecutions consultation with victim’s family in domestic homicides         

1.28 These are welcome measures to ensure these homicides are fully prosecuted. They may prevent decisions like those in the killings of Natalie Connolly, who died with 40 separate injuries including terrible internal trauma, and Laura Huteson, who had her throat cut. The men who killed these women both claimed that they consented to the violence, and prosecutors opted for lesser charges of gross negligence manslaughter (a charge used in the prosecution of bouncy castle operators who cause death by not adhering to safety standards) rather than murder.

NC8 Offence of non-fatal strangulation         

NC9 Offence of non-fatal strangulation in domestic abuse context         

1.29 Strangulation and asphyxiation is common in the homicides claimed to be rough sex – two thirds of those women have been strangled. More widely, it is a significant component of sexual assaults, with 10% of women attending a Sexual Assault Referral Centre [6] reporting they’d been strangled. With potentially 2 million [7] UK women who have already experienced strangulation assaults in sex, this is a major issue, and not only in domestic abuse: a third of women who have experienced non-consensual violence in sex say they’d just met the perpetrator that day [8] . Not all these women are going to police, although anecdotally we hear of a huge increase in reports of this to police.

1.30 Too many of the claimed "consensual" non-fatal assaults we see in our research have strangulation prosecuted as common assault, or more often, not at all:

1.31 Dakin [2017] -despite a history of domestic violence, –asphyxiation was prosecuted as common assault – not ABH as recommended by the CPS.

1.32 Dixon [2013]: prosecution for GBH was successful, although this assault was astonishingly severe - a woman in prostitution was strangled with a cord until he thought she was dead, was driven to the country and dumped in a ditch, where she woke up. She had brain damage from the strangulation, and no account was taken of this in the court’s assessment of her behaviour afterwards where she went to his house. He said he was inspired by TV’s Diary of a Call Girl and that she’d consented to strangulation for "an extra £10". He was sentenced to two years.

1.33 Women have told us they’ve reported strangulation to police, only to have officers question if they had asked for it, as "it’s something you can consent to". We have so far been contacted by women who have heard this from officers in four police forces.

1.34 We have analysed news reports of domestic abuse. During a single week [9] of the COVID-19 lockdown, we found that eleven men were arrested for strangling women – mostly their partners. Ten had previous convictions, and only three were prosecuted for ABH.

1.35 Strangulation of women is widespread, and deeply injurious. Loss of consciousness can begin at 4 seconds of strangulation, indicating "at least minor brain injury", bringing substantial risk of serious psychological trauma, stroke and miscarriage [10] . Strangulation must be prosecuted as a serious assault, whatever the relationship.

NC10 Prohibition of reference to sexual history of the deceased in domestic homicide trials         

1.36 Domestic homicides with a "rough sex" claim may feature evidence that the woman enjoyed violence in sex. This may be half-memory of discussion of sex with a colleague [11] or lengthy evidence from the man on trial.

1.37 That alleged sexual history may be justification to prosecute for a lesser charge, or in giving a lighter sentence:

1.38 In the killing of Natalie Connolly, the judge accepted her consent to beating and insertion of a trigger spray bottle when sentencing the man who killed her to three years eight months.

1.39 In the sentencing of the man [12] who murdered Una Whitney, his claim that she wanted him to insert mud into her mouth and vagina was accepted by appeal judges, who reduced his sentence.

1.40 Even where the "rough sex" claim fails to bring a lesser charge or lighter sentence, the exploration of the woman’s sexual history brings unimaginable pain to families. The man who killed Charlotte Teeling was found guilty of her murder and sentenced to a minimum of 29 years for sexual and sadistic murders, with the judge rejecting the rough sex claim. But Charlotte’s brother Thomas said: "in court they had to trawl through my sister’s sex life and she wasn’t there to speak out against it. Everyone just assumed that my sister was into stuff like that. It made losing her a million times worse." [13]

NC11 Anonymity for victims in domestic homicides         

In these cases, the lurid claims around the woman’s supposed consent to "a sex game gone wrong", will be uncritically repeated in headlines.

1.41 Decades later, those headlines and articles remain. Lindsey, the sister of Vicky Wynne Jones said of the man who killed Vicky: "He took away Vicky, her choices, her chances, her future. And then he took her dignity. Even now, it’s the ‘sex game gone wrong’ that gets focused on. Even though it was disproved, it’s always going to be there. [14] "

1.42 Anonymity for these victims is vital.

The opportunity for further provision         

1.43 We are encouraged that the Government is considering its own proposals to stop ‘rough sex’ defences being used to evade justice. We support the amendments NC4-NC11 proposed, but they are the minimum needed to begin to end these ‘rough sex’ claims.

1.44 This is the right Bill to bring about change – but its scope cannot include all women killed and injured in violence men say they wanted. Additional provision, outlined below, will be needed in addition to this Bill to ensure those who have just met their perpetrators or who are otherwise not personally connected, are protected:

1.45 NC11 protects victims in domestic homicides, but victims in non-fatal assaults also need anonymity - for instance, where ABH is prosecuted. In several recent violent assaults, the woman’s name is reported in newspapers, along with lurid claims she asked for the violence.

1.46 Similarly, victims of non-fatal assaults will not be protected by NC10 from having their sexual history presented in court. Recent ABH cases included detail of the woman’s sex life, with video and messages of her intimate fantasies viewed in court to support the defendant’s claims.

1.47 Even where judges disallow consent defences, a reasonable belief in consent can still form part of favourable sentencing – even where the woman assaulted says she did not consent.

1.48 Victims have reported to us that police and CPS have declined to prosecute rape - including rape with additional violence - where the victim has previously consented to some "rough sex", like slapping or use of handcuffs.

1.49 The CPS seem not to prosecute additional violence in cases of rape and sexual assault. One woman told us her story: she had been raped, strangled and beaten by a partner who said she consented to all of it. The CPS prosecuted the rapes but later abandoned those prosecutions. They would not prosecute the severe strangulation or beating even where the defendant seemed to admit he had done this.

1.50 Data on the use of these claims must be collected to measure the effectiveness of law and policy changes.

May 2020