A Fifty Shades of Grey area over violent sex

Juries seem increasingly willing to accept “rough sex” as a defence against murder. Does “BDSM” allow abusers to hide in plain sight?

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“Fifty Shades of Grey” (above), criticised by some as depicting an abusive relationship, has had a role in normalising BDSM (©Atlaspix / Alamy Stock Photo)

No one except John Broadhurst knows exactly what happened in the early hours of December 18, 2016. His version of events is as follows. He and his girlfriend Natalie Connolly spent the afternoon and evening drinking in a variety of bars and clubs before returning to his house in Staffordshire by taxi. The taxi driver testified in court that he left Connolly at the doorstep of the house. He was the last person, apart from Broadhurst, to see her alive.

Connolly had consumed a huge amount of alcohol and cocaine, but according to Broadhurst was sufficiently sober to consent to “rough sex”. Broadhurst told the court that, with Connolly’s consent, he beat her with a shoe, but he insisted that he was not responsible for the injuries to her head — he claimed that Connolly had fallen accidentally as a result of her inebriation. However, he did admit to spraying bleach over her face when she was unconscious, telling the court that he did this because he “didn’t want her to look a mess”. He also admitted responsibility for the vaginal trauma she suffered. Broadhurst told the court that he had, at Connolly’s request, penetrated her with a bottle of carpet cleaner which had then become stuck, and that he had inadvertently caused her severe internal injuries in his efforts to remove it.

The defence’s expert witness testified that Connolly died, not from the haemorrhage caused by this injury, but from the combined effects of alcohol and cocaine. The defence simultaneously insisted that Connolly had been sufficiently sober to consent to sex, but also that her inebriation had been so severe that it had caused her death. At approximately 3 am Broadhurst left her lying at the bottom of the stairs. She may already have been dead at that point. He did not call for medical assistance until 9.30 am the next day, when he told the 999 operator that his girlfriend was “dead as a doughnut”.

The prosecution presented a different interpretation of events. There had been previous incidents of Broadhurst assaulting Connolly — he says consensually — leaving serious bruising. On the night that she died, the prosecution claimed that Broadhurst was angry with Connolly for sending explicit messages to her ex. The injuries that Connolly suffered were consistent, according to the prosecution, with a vicious attack. Her post mortem found that she had more than 40 injuries including deep bruising to her breasts and buttocks, lacerations to her face, a fractured eye socket, and the trauma to her vagina that, according to the prosecution’s expert witness, probably led to, or at least accelerated, her death. Her blood alcohol level was five times the legal driving limit — far too high, claimed the prosecution, for her to have been able to consent to sex of any kind, let alone the sort of “rough sex” it claimed killed her.

Broadhurst was initially charged with murder, grievous bodily harm (the most severe form of assault), and sexual assault by penetration, but on December 18, 2018, he was found guilty of gross negligence manslaughter. His only crime, according to the court, was failing to call an ambulance when he realised that Connolly was at risk of death. He was sentenced to three years and eight months in prison.

Many feminists responded with shock and fury, chief among them Harriet Harman MP, who spoke on BBC’s Woman’s Hour about the verdict, condemning the increasing use of what she described as the Fifty Shades of Grey defence. Harman argued that, while in the past men were treated more leniently by the courts if they used the so-called “nagging and shagging defence” — claiming that a woman had provoked lethal violence through disobedience or infidelity — murderers are now able to evade justice by claiming that their victims consented to the violent acts that killed them. She told the programme: “We cannot have a situation where men kill women and then blame those women for their own deaths.”

After the verdict, a group of feminists on Mumsnet decided to take action and set up the We Can’t Consent To This campaign. Taking inspiration from Karen Ingala Smith’s Counting Dead Women project, the campaign collects information on defendants who have relied on a defence of “sex gone wrong” in the death of a woman or girl in the UK. Fiona Mackenzie, the campaign coordinator, tells me that the motivation behind the website was to draw more attention to the prevalence of this defence tactic: “There are so many of these out there, but I think they’ve never been put together in one place.” Fiona and the other women involved have painstakingly pieced together information by sifting through local news archives. At the time of writing, the website lists 42 women in the UK who have been killed in such circumstances, and there are likely to be many more cases that have not yet been documented.

Most of the victims died from strangulation, although a significant minority, like Natalie Connolly, suffered serious genital trauma. Most of the victims were the wives or girlfriends of perpetrators, and there was often evidence of domestic abuse. Other women had only met the perpetrators that day, and a large number of victims were involved in the sex trade. Fiona tells me that they have yet to come across a single example of a woman killing a man and claiming that it was a “sex game gone wrong”. Thus far, this seems to be a defence tactic exclusively used by men.

It’s important to remember that, in most of these cases, the “rough sex” defence didn’t work. In 69 per cent of the cases documented by the We Can’t Consent To This campaign, the court did not accept the narrative presented by the defendant and he was found guilty of murder despite his insistence that the victim had died as a result of an accident during BDSM sex. However, it seems that not only are defendants using the “rough sex” defence more often, but courts are also increasingly willing to accept it.

Broadhurst was not the only man in the UK who successfully used the rough sex defence in 2018. Laura Huteson met a similar fate to that of Natalie Connolly when she was killed by Jason Gaskell at his home in Hull. Gaskell had attacked another woman only a few days before killing Huteson and had a longstanding interest in extremely violent sex. On the night of February 27, 2017, having met Huteson a few hours earlier, he severed an artery in her neck with a knife he kept under his pillow. His account was that he had consensually held the knife to her neck during sex, and then had accidentally slipped and fatally wounded her. He was convicted of gross negligence manslaughter and sentenced to six years’ imprisonment.

Later that year, Chloe Miazek also died in similar circumstances. The 20-year-old had recently left an Aberdeen nightclub and was, according to witnesses, extremely drunk when she met 32-year-old Mark Bruce at a bus stop in the early hours of November 3, 2017. He led her back to his home where, according to his account, he accidentally strangled her to death during consensual sex. The court accepted this account and he was found guilty of culpable homicide (the Scottish equivalent of manslaughter). The testimony of Miazek’s ex-boyfriend aided the defence when he recalled that she had once suggested to him that she was interested in erotic asphyxiation. Bruce’s barrister said that “it would seem to be a complete coincidence that Mr Bruce met another person who shared his interest in that particular activity”. Like Gaskell, Bruce was also sentenced to six years imprisonment.

In order to find someone guilty of murder in the UK, the jury must be convinced beyond reasonable doubt that the defendant intended either to kill the victim, or to very severely injure them. If there is not enough evidence to prove that they intended this, but their actions nevertheless led to the victim’s death, then the jury may well find the defendant guilty of manslaughter. There are a wide range of actions that can constitute manslaughter, and it can therefore carry a wide range of prison sentences, ranging from one year to life, depending on the circumstances.

When faced with a case like the death of Natalie Connolly, or any of the other cases in which men have used the “rough sex”
defence, the challenge for the court is in differentiating between one of two possibilities.

The first is that the defendant was straightforwardly cynical — he intentionally murdered his victim, and then pretended that she died as a result of an accident during consensual BDSM (erotic foreplay involving bondage, discipline, dominance, submission or sadomasochism). Strangulation is the most common method of murder used by men against women, and is also the most common cause of death in “rough sex” cases. It is perfectly possible (though by no means certain) that a man could intentionally kill someone, claim that it was an accident, and so escape a murder conviction. Although a manslaughter conviction may carry a life sentence, it appears from recent cases that men found guilty of manslaughter after using the “rough sex” defence are being handed relatively low sentences. There is therefore a strong incentive for murderers to offer such a defence. As Fiona Mackenzie puts it, “The cost to the man accused is basically nil, it’s worth a try.”

It is also possible that in any given case the “rough sex” defence might be true. For instance, the defendant might have gained the victim’s consent to strangle her (either by hand or with a ligature) for the purposes of mutual sexual gratification, and he might have accidentally strangled her too hard or for too long, thus causing her death. The defendant might not have intended to kill his victim, or even cause her serious injury, but he nevertheless did so. While this may sound like a plausible scenario, it is important to bear in mind that an erotic interest in being asphyxiated is overwhelmingly found in men — women very rarely want to be strangled. Nevertheless, cases of women claiming that they accidentally strangled their male partners to death are not reaching the courts: as far as I have been able to discover, there has not been a single case in the UK. Unless this is an extraordinary coincidence, it seems that it isn’t easy to accidentally kill someone during consensual strangulation — if it were, we would expect to see both male and female defendants. Nevertheless, it is possible that some of the deaths catalogued by We Can’t Consent To This were genuine accidents.

It is here that the legal status of BDSM becomes important. If the court is convinced that the death truly was accidental and that the victim really did consent to what was done, then a choice must be made: either to acquit, or to convict the defendant of one of two forms of manslaughter — gross negligence or unlawful act. If the defendant committed a criminal act which led to death, he should be found guilty of this second, more serious, form of manslaughter. If the act that led to death was not criminal, then he should be convicted only of gross negligence manslaughter. It all depends on whether BDSM sex is considered criminal. This is where the current legal situation becomes murky because there increasingly seems to be a disjunction between the law as it is written and the law in practice.

Officially, the law on violent BDSM is quite clear: you cannot consent to it. Technically it shouldn’t be possible for defendants to claim that their victim consented to being injured, since the law states quite clearly that consent is not a defence to serious assault. The legal position of BDSM centres around a case known as R v Brown [1994], one of the most controversial pieces of case law in England and Wales.

The events that led to the Brown case began in 1987 when a police raid discovered a videotape that depicted a number of men engaging in BDSM. Some of these acts were so extreme that the police were reportedly concerned that some of the men might have been killed, and they therefore launched a murder investigation. They interviewed dozens of gay men involved in the BDSM network that had produced the tape and discovered that not only had no one died, but none of the men involved had needed medical attention for their injuries. Nevertheless, 16 of them pleaded guilty to a variety of assault charges and were imprisoned. Some of them appealed against their convictions and the case went to the House of Lords, which concluded that their actions had indeed been criminal.

The effect of Brown is that, to this day, any BDSM activity that causes injuries that are more than “transient or trifling” remains illegal. It is possible to consent to an injury more serious than this, but only in certain carefully defined circumstances: in the course of a medical procedure, as part of tattooing or piercing, or while taking part in some sports such as boxing and rugby. A crucial line in the Brown judgment reads: “It is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason.” The Lords determined that sexual stimulation did not constitute a “good reason”.

There have been many vociferous criticisms made of the Brown judgment. It is widely viewed as expressing a prurient distaste for unusual sexual behaviour, and some of the comments made within the judgment do suggest a homophobic bias against the men involved. Many liberals also object to a legal system that seeks to dictate the sexual behaviour of consenting adults, including some feminists who view BDSM as a form of sexual liberation. The law on BDSM feeds into a wider conflict between the individual citizen’s desire for autonomy and the state’s desire to enforce norms and protect the vulnerable.

The Spanner Trust is a campaigning group founded in response to the Brown judgment that seeks to liberalise the law on BDSM. It supports decriminalising all consensual injury, with the exception of serious disabling injury or death. In its view, the state should not interfere in the sexual lives of people practising BDSM in a safe, sane, and consensual manner. Its spokesperson, solicitor John Lovatt, told me it is important to draw a firm line between abuse and consensual sexual injury. The Spanner Trust opposes any mendacious use of the “rough sexdefence, and Lovatt suggests that, in cases such as those documented by the We Can’t Consent To This campaign, BDSM practitioners should be asked to give testimony on responsible practice, helping to clarify for juries the difference between domestic violence and genuine BDSM.

I have no doubt that BDSM supporters abhor any cynical use of the “rough sex” defence. However, their proposed reforms to the law could have serious unintended consequences. Jonathan Herring, Professor of Law at the University of Oxford, tells me that he is concerned that victims are not getting justice even in the current system where BDSM is technically illegal, and he describes the proposals of the Spanner Trust as potentially “very dangerous”. Herring suspects that the increasing success of the “rough sex” defence is due to changes in the attitudes of juries. Although the Brown judgment makes clear that victims cannot consent to violence that is not “transient and trifling”, Herring suggests that “juries are increasingly reluctant to follow that advice” and are more willing to accept the narratives presented by killers who make the “rough sex” defence.

In the years since Brown, BDSM has become far more mainstream, particularly with the success of the Fifty Shades of Grey franchise. There has been a huge rise in access to extreme pornography that depicts violence against women, and feminist campaigners have raised concerns that this is influencing sexual norms. It may be that the rise in the use of the “rough sex” defence is a result of this trend: men are more likely to want violent sex, more likely to kill their partners in the course of such sex (accidentally or not), and then more likely to be treated leniently by sympathetic juries. No doubt the increasingly open-minded attitude of juries is positive in some ways, but there is a cost.

Suzanne Zaccour, an Oxford doctoral student whose research is focused on violence between sexual partners, is particularly concerned about attitudes towards strangulation, the most common form of death in these cases. She points out that strangulation is wrongly believed by many to be “light” BDSM because it often leaves no visible signs of injury. In fact, strangulation is extremely dangerous — it is not only potentially lethal, but can also lead to long-term injury including brain damage. Fiona Mackenzie tells me that many of the women involved in the We Can’t Consent To This campaign were drawn to this issue because they have experienced non-consensual strangulation themselves: “It’s really really commonplace in the dating market now for men to expect strangulation,” she says.

Professor Susan Edwards, barrister and academic at the University of Buckingham, is deeply concerned that strangulation is not treated sufficiently seriously in law and that the victims of abuse are thus being failed by the criminal justice system. At present, non-fatal strangulation falls under the category of battery, the mildest form of assault — so mild, in fact, that one can legally consent to it. Edwards suggests to me that it should be treated as a separate offence, as it is in countries such as New Zealand, and that perpetrators should be pursued more vigorously in the courts. Herring and Zaccour agree that non-fatal strangulation should be treated far more seriously in law than it currently is.

This is not a proposal that is welcomed by the BDSM community, who insist that erotic asphyxiation can be a harmless and pleasurable experience that should be criminalised only if it is non-consensual. The trouble is that proving the presence or absence of consent beyond reasonable doubt is exceptionally difficult, particularly when the victim is dead. It is all too easy for violent abusers to evade justice by claiming that their victims consented to the act that killed them because, as BDSM becomes more mainstream, juries are increasingly willing to accept such claims. We are faced with a situation in which some consider the law to be too restrictive, and others that it is too lenient. Uncomfortable as it may be, there is a conflict between BDSM practitioners’ wish for sexual autonomy, and the need to provide justice for the victims of abuse. This is a zero sum game.

But even if feminist campaigners won the day and the legal reforms proposed by BDSM supporters were rejected, the truth is that there is very little stopping murderers from cynically using the “rough sex” defence. Yes, a more robust approach to the law on strangulation would help, and educating the public on the facts about domestic abuse is worthwhile, but the real problem is the attitudes of juries. Cases like Broadhurst are symptomatic of a wider culture that views violence against women as a normal and acceptable part of sex, and there is no silver bullet for that problem.

Broadhurst is likely to be released from prison at the end of next year. The Attorney General has refused to refer his sentence to the Court of Appeal, stating that the judge’s decision was reasonable.

Broadhurst was not found guilty of murder because the prosecution abandoned its attempts at securing this conviction, believing that the jury could not be persuaded that he had any intent to kill or very seriously injure Connolly. Nor was he found guilty of unlawful act manslaughter, because there was controversy over whether or not his actions led to her death. It is surprising, given the precedent set by Brown, that he was not found guilty of serious assault, given the injuries he inflicted when he beat her. It is equally surprising that the jury were prepared to accept Broadhurst’s claim that Connolly was able to consent to sex, given her level of intoxication. This was a complex case: nevertheless, it is clear that Broadhurst was treated extremely leniently and the outrage in response to his sentence is, in my view, justified.

Whether or not the court was right in this case, the unwelcome truth is that a permissive attitude towards BDSM does allow abusers to hide in plain sight. Many people are sympathetic towards men who are aroused by extreme violence, as long as their partners are willing to suffer it without complaint. “It’s just a fantasy,” as the common defence goes.

But should we then be surprised when some men want to go beyond fantasy, and no longer care if their partners are consenting? The dead cannot speak, and a person who died from consensual violence looks exactly the same as a person who died from non-consensual violence. How are we supposed to tell the difference?