RYV response to "Rough Sex Defence" Consultation
Raise Your Voice Response to:
Consent to serious harm for sexual gratification – not a defence
Raise Your Voice is a joint project of Women’s Resource & Development Agency (WRDA), Northern Ireland Rural Women’s Network (NIRWN), Women’s Support Network (WSN) and Reclaim the Agenda (RTA)
Introduction:
Raise Your Voice is a joint project of Women’s Resource & Development Agency (WRDA), Northern Ireland Rural Women’s Network (NIRWN), Women’s Support Network (WSN) and Reclaim the Agenda (RTA). This project began in 2019 and is funded by Rosa: the UK Fund for Women & Girls and Times Up: UK, and led by WRDA, which has been a leading women’s organisation in NI since its founding in 1983.
The goal of the project is to tackle sexual harassment and sexual violence in communities across Northern Ireland. We draw upon the combined decades of experience from all four organ isations to do so. As well as lobbying work we work directly in the community delivering training on issues related to sexual harassment and consent. In 2020 alone, we reached over 1000 individuals with ou r workshops, in person and online.
Much of our campaigning is influenced by the work we do in the community that has made it clearer to us than ever the need for greater education on these issues, more openness in discussing the impacts and more intervention as a preventative measure – as well as the need for more support services for those who are victims of sexual violence.
Our views in regard to this consultation is that this is a golden opportunity to do something of great significance that will help victims and their families more than the formalisation in legislation of the existing R v Brown case law, as has happened in England and Wales. This cannot prevent defendants claiming that death occurred by accident, and this is why these cases tend to result in unsatisfactory outcomes. One example is the case of the death of Natalie Connolly where the defendant was found guilty of manslaughter and served a short sentence. Instead, to truly bring justice for these crimes we need a new offence that would capture these reckless and negligent forms of sexual manslaughter and allow for appropriate sentencing in accordance with the culpability of the defendant. We have argued for this and outlined its likely shape in response to Q. 4.
Finally, while we note the one week extension to the consultation period, we are concerned that the relatively short consultation period, which included a holiday period, has presented a barrier to drafting our own response and is likely to result in fewer responses from the general public, as well as making it impossible for us to usefully consult with stakeholders. We recommend that the Department review the WRDA guidance ‘Women at the Heart of Public Consultation, A guide for
1 PublicAuthoritiesandWomen’sOrganisations’ .
1 https://wrda.net/wp-content/uploads/2018/10/WRDA_WomenAtTheHeartOfPublicConsultation.pdf
Q1 Do you think the law in Northern Ireland is sufficient as it stands?
No.
The law at present lacks the provision to deal with fatal cases where the defendant claims that death resulted accidentally as a result of sexual activity. This is the essence of the so -called “rough sex defence”, but it is vital to consider that the law cannot prevent a defendant from claiming that a death was accidental and not intended. This leads to a situation where murder charges are difficult to prove without exceptional evidence of premeditation, and therefore the resulting charge is often a charge of manslaughter, which in itself does not capture the nature of what has happened . This has knock on effects on sentencing guidelines and often leaves victims’ families feeling that justice has not been properly delivered.
We are sympathetic to the impulse to codify the existing case law into legislation, as has happened in England & Wales, but we do not believe that this will be sufficient to prevent a defendant from arguing that any death or injury occurred accidentally in the course of consensual sexua l activity, because to prove murder one has to prove intent, and accidental death must be allowed as a defence.
This leaves the legal system in a bind that seems to be resolved only by the introduction of a new category of offence. Therefore we will argue that we need to go further in this than England & Wales has, and create a bespoke piece of legislation that will create a specific sexual offence that captures injury or death resulting from negligent and/or reckless sexual activity. This offence would succeed in capturing those cases where there is no evidence of intention to kill but that the recklessness was such that a responsible person should know that it could well result in serious injury or death. In addition we can do so in a way that does not pathologise certain kinds of sexual behaviour that can be entirely safe and consensual – as indeed all sexual encounters ought to be.
Separately there needs to be a non-fatalstrangulation law passed that focuses specifically on non- consensual choking or strangulation. This would need to be framed in a way that includes the use of strangulation within a context of domestic abuse and also its use within sexual encounters where theremaybe nopre-existingrelationshipordomesticrelationshipbetweentheparties.
Q2(a) Do you think that consent to serious harm should be outlawed in legislation, similar to the amendment to the Domestic Abuse Bill in England & Wales?
No.
We understand the impetus behind the campaign and are sympathetic to the unease with the way in which these cases are framed but we believe that this approach is insufficient. This is because a defence against a charge of murder cannot be outlawed and therefore this approach will not achieve its intended purpose, and we outline a better approach in response to Q4.
Cronin et al argue that formalising R v Brown in legislation is insufficient “ 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.”2
Q2(b) If yes, do you think the offences to which the amendment applies are appropriate?
n/a
Q3 Do you consider that a programme of education is needed to:
* raise awareness of the dangers of rough sex, and the meaning of consent; and
* raise awareness within the criminal justice system to recognise and deal appropriately with the issue when a victim makes a complaint?
Yes.
Raise Your Voice takes the view that education around consent must be the foundation of any attempt at wiping out the offence that leads to the so-called rough sex defence being used in the first place, as well as to dealing with it properly when it comes before a court.
Education is an absolutely vital piece of the puzzle if cases like this are to be prevented and if they are to be dealt with in an appropriate way when they come before the courts. Having said that, we are careful to stress that we do not want to stray into a situation where any education on this topic is heteronormative, cisnormative, assumes ablebodiedness or indeed is overly moralistic with regards to sexual practices.
At present sex education in Northern Ireland is woefully insufficient , tending to be strictly heteronormative and to focus on abstinence rather than encouraging open discussions of these topics. Young people have made their views on the present state of sex and relationships education clear in a survey by Belfast Youth Forum where only half of young people think their right to relationship and sex education is currently not being met. 34% of young people who completed the survey had never received a relationship and sex education lesson in school, and of those young people who did receive lessons, only 10% said the information they received was “very useful.” Only 23 percent of young people felt adults trusted young people to make their own decisions. Also, the older a young person becomes the poorer they think this education becomes. Further, only 1 in 5 receive any information relevant to LGBT+ relationships. The four most common word associations were “basic”, “unhelpful” “useless” and “biased”.
The result of this gap in education colliding with the digital age has been an increase in young people relying on pornography for their sex education and the reported rise of non-consensual violence in sexual encounters4 seems obviously connected with this situation. We must not allow this to continue and we must face the reality that the situation will not improve without intervention.
We argue that the focus ought to be on healthy, safe and consensual sex education that relies on communication and it must unpack and work through a rigorous understanding of consent in a sexual context, taking into account the prevalence of sexual violence within and outside of sexual relationships. It must be inclusive of LGBT relationships and seek not to take a moralistic tone about what may be unconventional sexual practices but which are nonetheless happening, this includes the need to encourage the use of safewords and other means of communicating throughout all sexual encounters.
https://www.starsdorset.org/blog/homicide-and-violence-in-sexual-activity-moving-from-defence-to-offence
https://www.belfastcity.gov.uk/documents/youth-forum/any-use-report#subjectsrse
https://www.theguardian.com/society/2019/jul/25/fatal-hateful-rise-of-choking-during-sex
In response to the Gillen Review and indeed over a period of decades numerous womens’ and LGBT+ organisations stressed the need for a shake-up in how sex and relationships education is approached here. It is difficult to combat myths, debunk stereotypes and encourage healthy relationships and a safe approach to sex. Despite the recommendations of CEDAW, the commitments made in the Northern Ireland (Executive Formation etc) Act 2019 to introduce compulsory SRE in schools and the evident need for reform in this area, it is evident that there remains an urgent need for thorough reforms.
With regard to the criminal justice system, we reiterate the arguments that women’s organisations submitted to the Gillen Report and indeed the findings of the Gillen Report itself; there is an urgent need for educational material that will not only inform on the current legal status of various acts but will actively seek to dispel the myths that tend to surround issues like rape and other serious sexual offences. The Gillen Report was clear that education on these issues must be addressed as part of “an extensive public awareness and school education campaign”, specifically recommending “introducing educational material for the benefit of the jury which might include a short video outlining the fallacy of these myths and judicial directions to this effect for the benefit of educating jurors at the very commencement of the trial, together with, if necessary, expert evidence on the subject.” This work is absolutely necessary and urgent – not just for cases of the kind covered by this consultation, but for serious sexual offences of all kinds.
The Gillen Report focuses on this issue at length and there is an important reason for this; the dispelling of rape myths and the widespread acceptance and understanding of a robust concept of consent could be the most important part of the educational puzzle as regards this issue.
Q4. Do you consider something different is required for Northern Ireland?
Yes.
We argue that a new law would best deal with the concerns raised around the so -called “rough sex defence”. Since we cannot stop defendants claiming that death was the accidental outcome of consensual activity, this new law would provide for cases whe re this defence can be met with a new charge – that the sexual activity was reckless or negligent to such a degree that a reasonable person must know that serious injury or death would be the likely outcome.
In our view this moment presents us with an opportunity to set the standard internationally as to how crimes like this can be dealt with in a way that both seeks to prevent them from occurring in the first place and that can deliver meaningful justice for victims.
We propose that this law should be a new category of sexual offence, based partially on the work of Dr Alison Cronin, Dr Jamie Fletcher and Dr Samuel Walker at Bournemouth University, whose work has informed our argument here. In the article Homicide and Violence in Sexual Activity, Moving from Defence to Offence they provide a persuasive argument that the legislation that would formalise the findings of R v Brown (1994) would not actually prevent people from claiming that death caused during sexual activity was accidental, whatever its cause, resulting in the outcome that most of these cases are prosecuted as manslaughter or the defendant pleads guilty to th e lesser charge of manslaughter. This cannot be avoided by formalising R v Brown, as the legislation
5 https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-2019.pdf p.30
proposed would do; “ 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.”6
In addition there is precedent for the creation of a specific offence lying between murder and manslaughter in the form of the offence of “causing death by dangerous driving” which captures offences where the driver should have known that their conduct while driving was such that it could have resulted in serious injury or death, even if the intent was not to kill, effectively prosecuting them for the outcome of their recklessness and negligence that could have been avoided with due care and attention.
In our preparation for this consultation we have contacted Dr. Alison Cronin and she has further advised us as to the outline of what such a bespoke offence could look like. One key element is that this ought to be classified as a sexual offence.
The importance of categorising this as a sexual offence is as follow s:
1. It accords with the principle of “fair labelling”and would allow for the development of fair and proportionate sentencing guidelines for this category of homicide.
2. Categorisation as a sexual offence has the procedural advantage that evidence of the victim’s past sexual history could be restricted by an extension of the Youth Justice and Criminal Evidence Act 1999 ss. 41 and 42 provisions. This would address widespread criticism that the current procedural approach in homicide cases contains no bar to the inclusion of the victim’s past sexual history. https://www.starsdorset.org/blog/homicide-and-violence-in-sexual-activity-moving-from-defence-to-offence
3. Framingtheoffenceintermsofasexualnatureispreferabletothecontextualisationasdomestic abuse that has occurred in England and Wales. This would recognise that sexual relations occur outside “domestic” relationships and that joint consensual engagement in a dangerous activity does not necessarily amount to “domestic abuse” – to suggest that it is would be a denial of the autonomy of both parties and could potentially also contradict case law as established in R v Wilson . http://www.e-lawresources.co.uk/cases/R-v-Wilson.php
Accordingly, we are specifically advocating the enactment of a sexual homicide offence, as an addition to the provisions of the Sexual Offences (NI) Order, that encompasses the existing law on manslaughter in the forms of unlawful and dangerous act, gross negligence, and reckless manslaughter with the additional element of sexual activity. Cronin adds that “
The adoption of the existing common law definitions with the addition of the sexual context has a number of benefits:
1. The application of the existing law to the sexual context provides parity with homicides committed in non-sexual circumstances, the sexual element being a matter of fact and serving as an aggravating or mitigating factor as appropriate.
2. There is no need to develop new and uncertain legal principles that may spawn future case law or retrospective appeals.
3. The existing common law definitions are sufficiently broad as to encompass dangerous or grossly negligent sexual conduct of any nature.
4. As the general law of homicide develops, either in common law or statute, the sexual killing offence would develop in step without the need for additional enactment/reform. ”
We take the view that the vision of a new, bespoke offence laid out b y Cronin and her colleagues could be the remedy to the way these cases play out in the courtroom in Northern Ireland and elsewhere. To clarify, this law would be suitable for other jurisdictions also, but it is especially relevant in Northern Ireland because of our persistent issues with inadequate sex and relationships education, the higher rates of homophobia here and because of the section 5 duty to report any crimes to police, meaning for instance that a person injured during consensual sex may fear see king medical attention as medical personnel would have a duty to report anything that they believed to be a crime.
In addition the full roll out of sex and relationships education, alongside the public awareness campaigns and education for those working within the legal system that was recommended in the Gillen Report, will help to both to ensure justice for victims as well as to help prevent these kinds of cases from occurring.