It is often said that claims of consensual sadomasochism or ‘sex games gone wrong’ in order to receive lesser sentences (sometimes referred to as the ‘rough sex defence’) does not exist in England and Wales by virtue of R v Brown. Certainly, the then House of Lords condemned the use of sadomasochism between homosexual men in the landmark 1991 case, calling it a ‘cult of violence’. In their judgment, they held that one cannot consent to harm that constitutes actual bodily harm (ABH) or above unless it falls into a set of exhaustive exceptions, such as tattooing or boxing. Sadomasochism, they ruled, is no such exception. With that in mind, it seems plausible to accept the argument that this defence cannot exist. However, subsequent cases heard in the years since Brown suggest that this legal precedent is not quite as steadfast as originally thought.

It is true that a defendant cannot rely on the ‘rough sex defence’ verbatim. Rather, it is a misnomer for a very real phenomena where acts of violence are presented as a spontaneous but unfortunate act — a crime of passion, even — despite further inspection revealing a wider pattern of abuse. We Can’t Consent to This found that, since 1972, rough sex has been used as part of the accused’s defence in 60 homicides of UK women, 7 homicides of UK men, and 115 cases of non-fatal assaults. Half of UK women were killed by former or current partners, with at least a third being subjected to abuse prior to their deaths. In at least 20 cases, the accused had prior convictions for serious violence against women, including murder, rape, attempted rape, kidnapping, and assault, and 3 would go on to kill again. While two cases relied on claims of rough sex in 1996, 20 such claims were made in 2016, indicating a pattern of growth despite the 1991 case. 45% of cases resulted in either manslaughter, which carries a lesser sentence, or were not prosecuted as a crime.

In terms of case law, we can see what kind of behaviour constitutes ‘acceptable’ consensual behaviour. Inserting a bottle of spray carpet cleaner into a severely inebriated person’s vagina, causing fatal arterial and venous haemorrhaging, amounted to mere battery in Broadhurst (making it possible for the victim to consent to her own death). The severe bruising, orbital fracture, and bleach sprayed on the deceased victim’s face were readily accepted by the judge as byproducts of consensualrough sex, despite constituting ABH. In Meachen, the act of inserting a large object in the victim’s anus while they were unconscious (having been drugged with liquid gamma-Hydroxybutyrate), causing life-long injuries, was accepted to be sustained during consensual (albeit rough) sexual activity. In Williamson, the act of smothering the victim with a pillow was similarly presented as a one-off crime of passion. Though the defendant had a chequered past filled with violence against women and numerous assaults, these acts of abuse were deemed ‘irrelevant to this case because what happened here was not the infliction of harm by any assault, or hostile act, but by a consensual practice aimed at giving pleasure’, according to the judge. The defendant went on to continue abusing more women, including his next partner, before murdering his mother after serving only three years for manslaughter.

But where does Brown fit in all this?

It took three years for the lower courts to depart from Brown. In Wilson, the court considered whether Brown’s ruling applied to heterosexual married couples, ruling that ‘[c]onsensual activity between husband and wife, in the privacy of the matrimonial home, is not… normally a proper matter for criminal investigation, let alone criminal prosecution’. Wilson was concerned with the branding of the appellant’s initials onto his wife’s bottom with a hot knife. Unlike Brown, where no permanent injuries were sustained in their activities, the harm inflicted on the victim in Wilson caught the attention of a medical professional who felt obliged to involve the police upon seeing the brand, producing written evidence for the prosecution. The facts of both cases are distinguished only by the severity of the injuries sustained by the appellant’s wife in Wilson and the sexual orientation of the appellants in Brown. An attempt to remedy the confusion created by Wilson was made in the later case of Emmett. However, in the more recent case of BM in 2018, the Court of Appeal maintained that ‘consensual activity between husband and wife in the matrimonial home was not a matter for criminal investigation and prosecution’, reverting back to Wilson’s controversialjudgment. The confusion caused by Brown in light of Wilson not only emphasises the former’s shortcomings but places this area of law on shaky ground.

In Slingsby, the deceased died of septicaemia after suffering a number of cuts to their vagina and rectum made by the defendant’s signet ring. It was held that this case could be distinguished from Brown because the sexual activity was not intended to cause harm or injury. As a result, a person may defend their actions, negating liability, simply by arguing that they did not intend to harm the victim. This is apparent in the aforementioned cases of Broadhurst and Meachen, where acts that result in fatal haemorrhaging or severe anal injuries (requiring the life-long use of a colostomy bag) were found to be lawful. This appears contrary to Brown where the Lordships based their judgment on the condemnation of violence, warning of the ‘unpredictably dangerous’ nature of sadomasochism, which Lord Templeman believed to ‘breed and glorify cruelty’.

Moreover, in Brown, Lord Mustill noted that there was ‘no animosity, no aggression, no personal rancour on the part of the person inflicting the hurt towards the recipient and no protest by the recipient’. The edited reel for Brown shown to the trial judge omitted negotiations, safety precautions taken, evidence of a long and trusting relationship between participants, and the pleasure obtained in the process. In contrast, the complainant in Meachen was drugged and unconscious, and in Broadhurst the victim’s blood alcohol level was so severe as to be categorised under ‘coma and death’, impeding their ability to consent. And yet, while the former was deemed by the court as cruel and unlawful, the latter cases were not. Ultimately, it is concerning that a defendant only has to frame the act of sexual violence as unintentional in order to legitimise it.

Debates regarding the existence of the so-called ‘rough sex defence’ are unlikely to stop any time soon, notwithstanding the enactment of the Domestic Abuse Act 2021. It is clear, however, that Brown is far from infallible. The Lordships sought to condemn gratuitous cruelty but their efforts were ultimately futile, their hands tied by the interpretation of subsequent cases. Regardless, while a defendant may not rely on the ‘rough sex defence’ verbatim, they may choose to reframe what happened in such a way, presenting acts of considerable violence as consensual sex.

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