The recent trial for the murder of Grace Millane has sparked a slew of controversy over the use of the so-called “rough sex gone wrong” defence to murder. The defendant in this case claimed that Ms Millane’s death was the accidental result of consensual strangulation during sex gone wrong. In his closing speech to the jury, prosecution counsel argued that “you can’t consent to your own murder”. Whilst this is as true a statement under English law as it is in New Zealand, it simplifies a complex area in which the law is arguably insufficiently sophisticated to address the nuances inherent in different types of sexual interaction.
The issue of consent to sex is one that has been pored over in recent years. It is possible that, in certain cases, unwanted injuries inflicted during initially consensual sex may serve to vitiate this consent. In Ms Millane’s case, however, the issue at trial was not one of consent to sex itself (which was never in dispute) but consent to the risk of injury during sex. The legal position, and the legal issues arising, are therefore different to those arising in cases of rape or sexual assault. The fundamental difference between the two is that whilst consent is a defence to sexual offences (except for some involving children, for example), it is not a defence to charges of assault occasioning actual or grievous bodily harm unless the activity in question falls into a category of “lawful” activities. By way of obvious examples, boxing and medical procedures have both been deemed lawful categories of activity where consent would be a defence to a criminal assault charge. The determining factor as to whether a category of activity is included in the list of lawful activities arises from an assessment of whether its inclusion would be in the “public interest”.
In 1994 the House of Lords was specifically asked whether injury caused for the satisfaction of sadomasochistic sexual gratification could fall into one of the lawful categories in the famous case of R v Brown. The majority decision was that it would not, meaning that the person inflicting the injury could be prosecuted, and the consent or even invitation of the person suffering the injury was, in legal terms, immaterial.
By contrast, the courts have taken a different position when the “injury” to which the victim is exposed is a sexually transmitted infection. This was considered in the Court of Appeal in 2004 in R v Dica. This case decided that one can legally consent to the risk of infection. The distinction drawn was that whilst someone cannot consent to being deliberately infected with a sexually transmitted infection, that is different to being “simply prepared, knowingly, to run the risk — not the certainty — of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse”. This distinction is superficially attractive: one cannot consent to deliberate infliction of injury for sexual gratification, but one can consent to the risk of injury that might arise during sexual activity. However, on a practical level, this makes little sense. Why would the public interest allow individuals to consent to the risk of being infected with a serious disease, including in circumstances where the risk might be extremely high (unprotected sex with someone suffering from HIV for example) but not allow those same individuals to consent to suffering minor injury (such as bruising) as part of consensual sex? The purported bifurcation that English law has made between risk and certainty of injury does not reflect the numerous grey areas in between, where some relatively minor injury may be inevitable but the risk of any real harm is very low.
Part of the cause of this imperfect situation lies in the use of a public interest test to determine to which activities causing injury one can lawfully consent. This categorisation is itself inevitably influenced by subjective factors such as prevailing social attitudes, and the presiding judges’ personal views of the activity under consideration. This subjectivity of approach means that, for example, one can legally consent to being injured in a boxing match, but not in prize fighting. Thus the decisions relating to injuries in a sexual context must be viewed in that light. In R v Brown itself, it is striking how much the disgust of the judges and, in some cases, apparent homophobia, seem to permeate the judicial decision making. Some of the starkest comments in this regard are:
- “Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised”;
- “…the rather curious activities in which the appellants engaged”;
- “Furthermore, the possibility of proselytisation and corruption of young men is a real danger”.
It is also notable that the more permissive decision in Dica came ten years after Brown. We are now a further 15 years on. Sadomasochistic sexual practices have become more mainstream, and it is unlikely that any judge would today decide a case of this nature on the basis that “cruelty is uncivilised”. On the other hand, there is an increasing awareness in the wake of cases such as Grace Millane’s murder, that instances of men accounting for violence to their partners on the grounds of “rough sex” are on the rise. Therefore, whilst more permissive social attitudes may increase the likelihood of the law recognising consent as a defence to assault in sexual situations, public policy may continue to militate against it. For now, the law continues to apply unevenly, allowing consenting sexual partners legally to consent to some potential harms, but not others.
  1 AC 212
  EWCA Crim 1103