Consent, intent
This piece is about the use of the 'rough sex defence' by men who harm women. I focus on ideas, not acts of violence, but it remains a challenging read. As always, a reminder I'm not a lawyer.
All of this - the discussion we will have, the ideas we will confront and their legacy of hurt - takes place in the memory of a young woman.
It’s hard to picture someone in life when you only knew them in their death - and in the handful of hours before it, captured in replayed moments of black and white footage. But you have to try, I think. A person’s dignity and mana matter after they’re gone, enduring like the love and the grief of the people who cared for them.
I was struck by Grace’s connection to her whānau, the tenderness of it. It was when her family’s messages went unanswered on her birthday - messages loving at first, then increasingly fearful too - that her parents and brothers knew something was wrong. That whānau connection seemed to follow Grace around the world, including to Aotearoa, anchoring her always to her home.
Grace’s death marked only the beginning of her family’s suffering. After the trial of her killer, they added their voices to the growing international campaign against the ‘rough sex defence’ that had been used by the man who took Grace’s life. In the UK, Grace’s home, this campaign had been in motion for a while; but her death, the anger and the anguish it created, gave a new impetus.
Campaigners went on to achieve a major victory. With the passing of the Domestic Abuse Act 2021, the rough sex defence was banned in England and Wales.1 Perhaps it brought a little healing to Grace’s family, but it didn’t end their work. They said in a statement, "We now hope that the rest of the world takes notice, and follows our lead, especially New Zealand. Changes need to be made to protect women."2
The international campaign against the rough sex defence continues. It is three years since the Domestic Abuse Act 2021, and six since Grace’s death. Aotearoa is yet to follow England and Wales’ example. Should we?
Before we talk about the rough sex defence, we need to step back and acknowledge the bigger picture: our society’s attitudes towards sex, women and consent. I’m a feminist, so I’m going so sketch out ideas from three different camps of feminists (simplifying a little). I’m not saying that only men cause sexual harm, and only women are victims - that’s clearly not true. But as we’re going to see, the rough sex defence is used almost exclusively by men, and people hurt or killed by those men are usually women.3 Our three camps of feminists offer different ways to think about how the bigger picture, our societal attitudes, connects to what we do in our bedrooms.
In the first camp are feminists (often second wave feminists from the 1970s) who don’t think sex is bad exactly, but are wary of the power relations around it. They see sex as one way that men can dominate, control or harm women; and when you look at history, they’ve got a point. These feminists would probably see rough sex as inherently degrading, something women are pushed into by a misogynistic society. These days, with our more permissive attitudes to sex, this camp isn’t so popular - but for feminists who fought so hard for the basics, like the idea that marriage doesn’t give a man the right to rape his wife, you can see how these ideas might resonate.4
In the second camp are sex positive feminists. They see women as having a lot of agency, and the ability to resist societal attitudes. There’s nothing inherently degrading about sex, these feminists argue, and women should be encouraged to have the sex they want, with whom they want, and without judgement. This camp of feminists will typically say that if rough sex is your thing, you should go for it. Some go further, saying that any attempt to restrict what goes on in the bedroom, even if it’s risky to women, interferes with women’s sexual freedom.5
The third camp of feminists is sex positive, but with caution. Sure, these feminists argue, sex is great, and women should be free to choose. But our choices are made in a context, and our society still holds messed-up views. We’re told ‘slutty’ women bring trouble on themselves; but at the same time, women who don’t give their partners the sex they want are boring. Damned if you do, damned if you don’t. Women still feel pressured to give consent, while men are still taught they’re weak to ask for it. People bring power imbalances to sex, and that can lead to exploitation.
In short, we can fight for an ideal world, but we still need to make rules for the real one.
I’m in this third camp, but as you might be thinking, it’s no straightforward place to be. Saying sex can be dangerous for women veers close to saying women are responsible for managing that danger. That’s victim blaming: I want to say from the outset, sex is only as dangerous as the person you’re having it with. Keeping these nuances carefully in mind, we’ll now move onto the rough sex defence.
Outside the work of a handful of academics and journalists, Aotearoa is barely talking about the rough sex defence, or rough sex itself. Why that is, I’m not sure: if we were naive before Grace’s death, we have no such excuse now. But what it means is we don’t have much local evidence to build on.
We’re going to look to the UK, where Grace came from, and where the rough sex defence has had been debated extensively - not just through the legal system, but by MPs, researchers, the media and everyday people. We’ll trace some events that led to the Domestic Abuse Act 2021 and its ban on the rough sex defence in England and Wales. Because the UK debate is ahead of ours, we can use it to help shed light on our situation in Aotearoa.
We need to start in 1994, with a landmark - some would say, notorious - UK court case called R v Brown.6
The events that would culminate in R v Brown began in 1987, when the Metropolitan Police discovered a videotape as they were investigating something unrelated. They played it; and at first, they thought they were watching a snuff film. The footage showed one group of men abusing another group of men, physically and sexually, in the most graphic and extreme of ways.
Or that’s how it seemed.
The reality was the men being injured in the videotape were taking part by choice. They’d been doing this for ten years. In fact, there was no complainant. But as the police saw it, all this didn’t matter: they prosecuted anyway. The men carrying out the BDSM were convicted. The court held that the law didn’t allow the injured men to consent to that kind of injury with that level of seriousness - so the men doing the injuring couldn’t use consent as a defence. R v Brown became case law, meaning it established the way the law should be applied afterwards. With it, the rough sex defence was gone - essentially, the same ban that campaigners would like to see in Aotearoa and across the world.
Over the years, R v Brown has come in for a lot of criticism. The critics make points that are still relevant today - we’ll soon start to see how. For now, we’re going to step through three of these points.
First, R v Brown was seen as the law overstepping into people’s private business, and for moralistic reasons. At its heart, the case was considering the balance between allowing people autonomy while protecting them from potential harm. When R v Brown came along, the law already said people couldn’t consent to being injured - but there was a list of exceptions to the rule. Those exceptions let people consent to injury during certain socially legitimate activities, like getting a tattoo or competing at boxing. Essentially, the job of the judges in R v Brown was to decide whether BDSM belonged on this list of exemptions. The judges said no. Critics replied, isn’t that a value judgement? Why is choosing to be hurt during sex less socially legitimate than choosing to be hurt during sport?
Second, R v Brown was homophobic, the judges taking issue not just with the acts on the videotape, but the gay men performing them. One of the judges even said it was a “comfort” that a “victim” in the case had “settled into a normal heterosexual relationship”. This was another value judgement, stigmatising people who were already marginalised.
Third, R v Brown wasn’t always adhered to, even though it established case law - and we have to wonder if homophobia was part of the reason. In R v Wilson, a famous UK case that came later in 1997, a woman was branded by her husband with a hot knife. The husband claimed it was consensual. Again, there was no complainant (although commentators have noted the branding had the hallmarks of abuse, and abuse survivors can be afraid to speak out).7 When the burn became infected the woman visited her doctor. The doctor breached patient confidentiality to report the woman’s injury to police, and the husband went to court.
If R v Brown had been followed, the husband would have been convicted: his wife would have been unable to consent to the injury. But that’s not what happened. In stark contrast to R v Brown, the judges said, ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution’. This led to confusion. Were there now different consent rules depending on whether you were the ‘norm’ - straight and married - or gay?
At this point you might be wondering something. Whatever were the problems with R v Brown, it became case law in the UK in 1994. If that meant people couldn’t consent to injury during sex, why didn’t R v Brown solve the rough sex defence problem? Why have campaigners kept fighting, including for the Domestic Abuse Act 2021?
This is where we reach the next layer of complexity. The rough sex defence isn’t always what we might think. And that makes it even harder to figure out what to do about it.
To explore this next layer of complexity, we’re going to stay in the UK a little longer and draw on the ideas of two law academics: Jonathan Herring and Hannah Bows. Herring and Bows focus particularly on the use of the rough sex defence when the victim has died and so cannot tell her story - but a lot of their basic ideas also apply to situations where the victim is alive. Again, we will simplify the ideas a little.
In the UK, men who use the rough sex defence aren’t always claiming the women they killed consented to their deaths - or, more accurately, that’s not all they’re claiming. If the defence was just about proving the victim’s consent, the approach in R v Brown could in theory stop defendants trying to do this (even though making a rule that people can’t consent to injury during sex can have other consequences - something we’ll come back to).
The rough sex defence often focuses on something different to R v Brown. Herring and Bows explain how for a killing to be murder in the UK, it must be proved the person who did it intended either to kill or cause grievous bodily harm. The intent behind an action is called mens rea (a nuanced legal idea, but we can keep it straightforward here). Mens rea matters because there’s generally a moral difference between doing something bad on purpose and doing it by accident - so there should generally be less punishment for an accident, or maybe no punishment at all. Often, the heart of the rough sex defence is that the man who killed his partner lacked mens rea; another way of saying he didn’t mean to do it. It wasn’t murder, just an unfortunate mistake. Things simply got out of hand.
If consent isn’t always the key to the rough sex defence in the UK - it’s often more about mens rea - then why do men who use the defence go to such lengths to argue that consent was given? You might be starting to join the dots.
Consent isn’t irrelevant to mens rea. If a man knew his partner didn’t want rough sex but he forced her into it, he’d find it harder to argue that her resulting death was unintentional. If a man can show his partner consented to rough sex, the idea of an accident might appear more plausible. If he can’t exactly show the woman consented, maybe he can argue she liked rough sex with other men - and that this, somehow, meant she must have wanted rough sex with him.
Of course, all this will seem more convincing if a jury holds certain ideas about certain kinds of women and the things they might consent to. Women who’ve had multiple partners, go on Tinder dates, have casual sex. Who get drunk. Who are interested in BDSM, but are ‘naive’ and ‘trusting’. These things might be statements of fact, more or less; but people often attach value judgements to them, both inside and outside the courtroom.
We don’t have much evidence to say how value judgements play out in rough sex cases, but we know more about rape cases, and it’s reasonable to think rough sex cases could have similarities. As recently as 2020, a review was conducted of international research on mock rape trials, which are used to understand how jurors come to decisions (something that’s usually confidential in actual trials). The research found that jurors’ decisions were strongly influenced by their beliefs about rape. And what were some of those beliefs? Drunk women are at least partly responsible if they’re raped. It’s not rape if a woman doesn’t communicate her lack of consent well enough or fight back. Women make false allegations often, motivated by revenge or regret - and a delayed complaint is a suspicious sign. Women send mixed signals to men. And when men are turned on, they can’t stop.8
We’re going to come back later to the reasonableness of the idea that a man might hurt or kill a woman during rough sex by mistake. For now, we need to acknowledge why the rough sex defence can be so distressing, especially when the victim has died. Mens rea, he didn’t mean to do it, can open the door to arguments about whether the woman consented (even when consent isn’t a defence). Arguments about consent open the door to evidence about a woman’s sexual history: the kinds of sex she might have had in the past. And with that door open, there’s little to stop ugly societal attitudes from creeping through.
As we’re going to see, some people believe the rough sex defence is less about the letter of the law, and more about harnessing those ugly societal attitudes as a kind of tactic.
How much of a problem is the rough sex defence?
In the wake of Grace’s death, the anguish the defence caused her family, this can seem like a horrible question. The reason we need to ask is that when we’re thinking about making policies or laws, we should be clear about the problem we’re trying to solve. That allows us to be sure our response is proportionate, not overstepping. Being proportionate is important for an issue like the rough sex defence, where there’s a trade-off: the right to be protected from violence on one hand, and the autonomy to have the kind of the sex we want on the other. Like R v Brown showed us, banning the rough sex defence could create situations where some people’s willing sexual activity is criminalised. We have to weigh that trade-off carefully.
Again, evidence from Aotearoa is limited. We’ll look once more to the UK, because there’s no reason to believe that what’s happening there couldn’t happen here - or isn’t happening already. Please be warned that what follows is distressing.
In the UK in 2016, Natalie Connolly was killed by her partner, a multimillionaire named John Broadhurst. At the time Broadhurst killed her, Natalie was so drunk she was either comatose or close to it. Broadhurst beat her, injuring her breasts and buttocks and fracturing her eye socket. He sprayed bleach into her face. He inserted a large object into her vagina, causing lacerations and a haemorrhage, before leaving her at the bottom of the stairs. The next morning he had breakfast, texted a friend and washed his car before ringing emergency services to report his partner was dead.
Broadhurst claimed Natalie had died during consensual rough sex. A jury found him guilty of manslaughter, not murder; and they convicted him not because he’d caused Natalie’s injuries, but because he’d failed to get her any help as she lay dying. Instead of the mandatory life sentence he would have received for murder, Broadhurst got three years and eight months in prison - a sentence he considered excessive, and appealed without success. In any case, he was released after serving less than two years.9
In the sheer revulsion that followed Natalie’s killing, a UK organisation called We Can’t Consent To This was formed, with the backing of a group of MPs, to campaign for a ban on the rough sex defence. We Can’t Consent To This was the first organisation to comb through situations where the rough sex defence had been used, in the UK and beyond. In 2020 they published a major report, focusing on England and Wales.10 Reading the report, the gratuitousness of its cruelty and abuse, made me feel physically sick, so I will share the high-level statistics only.
We Can’t Consent To This found that the rough sex defence has been used successfully in the UK for fifty years, but after 1996, its use increased tenfold. Their report looked at the period between 2010 and 2020, and focused on cases where a person who hurt or killed another claimed they had consent, but where the victim (if alive) said no consent was given. The report found 60 homicides of UK women and 7 of men, as well as non-fatal assaults involving another 114 women.
And who was hurting and killing these victims? Without exception, it was men. To quote the report:
32 women were killed by current or former partners – of those most (at least 21) had been abusive to the women for some period of time before the killing.
A third of the women had met their killers the same day they were killed.
Two thirds of the women were strangled. This is three times the rate of strangulation in killings of women as a whole.
At least 20 women were killed by men who have other convictions for serious violence against women. These include murder, rape, attempted rape, kidnapping, assault. At least 3 of the men killed again after successfully using rough sex claims.
In four of the recent homicides, the man watched extreme porn before or after the homicide.
What happened to these men? The report argued that often, the rough sex defence worked for them. Of the 60 homicides, “45% resulted in a prosecution for manslaughter, a lesser sentence, or the death not prosecuted as a crime at all”. According to the report, R v Brown was all but being ignored, and abuse was being recast as something women choose - in short, a misogynist turn that emboldens and protects violent predators.
We have to be a little careful how we interpret the report by We Can’t Consent To This. We’ve seen how in a narrow sense, consent isn’t all there is to the rough sex defence, although it’s clearly important - and the report picks up different cases where the defence has been used in various ways. In addition, every decision to prosecute, every court case, has particular circumstances, so it’s hard to generalise across them, or draw a straight line between the use of the rough sex defence and a particular outcome.
But there’s important context to back up concerns raised by We Can’t Consent To This.
In 2019, the BBC commissioned research into the rough sex experiences of over 2000 women aged 18-39. The women were asked if they’d ever experienced slapping, choking, gagging or spitting during consensual sex. If they said yes, they were asked ‘How often did you feel pressured into it?’. The women answered:
Every time (8%)
Most times (12%)
Sometimes (22%)
Never (56%)
Prefer not to say (2%)
Of all the women in the research who’d had rough sex, whether they wanted to or not, 20% said they’d been left upset or frightened.11
In this time of autonomy, of sexual agency, our freedom to choose without judgement - when we’re told that we’ve won, and we don’t even need feminism anymore - women are still having sex we don’t want.
Whatever the strengths and weaknesses of their report, We Can’t Consent To This point to an alarming problem: one that extends far beyond the UK.
By now, we’ve covered a lot of ground. Drawing on the UK as an example, we’ve looked at the history of the rough sex defence and the ideas behind it: a mix of mens rea (he didn’t mean to hurt her during sex) and consent (she wanted the sex that accidentally hurt her). We’ve seen some of the challenges in banning the defence, like risking value judgements about certain kinds of sex and certain kinds of people - but we’ve also seen the danger the defence poses to women if we do nothing. With what we now know, we’re going to come back to Aotearoa.
The reason I began this piece is that I never really understood what happened to Grace - neither the senselessness of her death, nor what came after. People whose opinions I respect took different views on the way her memory was treated at court, the repetition of her most intimate details, the claim she consented to the act that killed her. Some saw the rough sex defence as the justice system doing an unpleasant but necessary job. To others, the defence was cynical and opportunistic: the latest version of the old misogynist trope ‘she asked for it’.12
To try to make sense of the trial of Grace’s killer, we will look at some differences between our legal system and the UK’s when it comes to consent and rough sex. Then we’ll try to understand how particular legal issues came to bear during the trial. These certainly aren’t debates I can solve, but I’ll present the ideas of people who followed the trial closely - doing so, I hope, with Grace’s dignity and mana always at the forefront of my mind.
We tracked the way the law around the rough sex defence evolved in the UK, and we will now do the same for Aotearoa.
We’ve seen how R v Brown made a rule that people can’t consent to injury during sex, getting rid of the rough sex defence - and when the Domestic Abuse Act 2021 was passed in England and Wales, it essentially repeated R v Brown. (Whether the Act is working is another question we’ll circle back to.) That’s the UK - but in Aotearoa, it works differently. Here, a person can’t consent to being killed, but they can consent to being injured - so our courts will allow the defence of consent unless there’s a good reason not to.13 In short, we have a more permissive approach to the rough sex defence. Before we judge whether the UK’s way is better, we need to understand the reasoning behind our own.
For a time, Aotearoa took our cue from the UK, using the approach to consent set out by R v Brown. Things changed in 2006, through a tragic case called R v Lee.
Joanna Lee and Yong Bum Lee, no relation to one another, were members of the same Auckland church, where Yong Bum Lee was a pastor. Joanna consented to Yong Bum Lee and other parishioners conducting an exorcism on her (although a witness later testified that during the exorcism she wanted to stop, but her words were interpreted as signs of the devil). As part of the exorcism, Yong Bum Lee strangled Joanna, and she died. Yong Bum Lee was originally convicted of manslaughter, but had his conviction overturned on appeal. The judges said he should have been allowed to use the defence that Joanna consented - and they said Joanna had the right to consent to injury short of death. R v Lee wasn’t a sexual case, but it became case law, giving us some of the important principles that underpin the rough sex defence today.14
How exactly does the reasoning behind R v Lee work? And how does it flow through to cases where the rough sex defence is used?
University of Auckland academic Julia Tomie explains (and again, we will simplify) that whether a defendant can use the rough sex defence in Aotearoa is decided case by case - but the starting point is that people should have a high level of autonomy to consent to injury if they want to. From that starting point, the judge considers a set of questions. How socially legitimate was the activity that injured the person? How risky was it? How serious was any injury that happened or was intended? Was it rational that the person who inflicted the injury believed they had consent? Depending on how the judge weighs these questions, a person will be able to use the rough sex defence or not.15 (It’s worth noting Tomie thinks this approach falls short because it doesn’t acknowledge that women’s ‘autonomous’ choices are made in the context of misogyny, as suggested by those alarming BBC statistics of unwanted rough sex we saw above.)
Now that we’ve looked at some basic ideas from our local context, we’ll turn to the issues that arose through the trial of Grace’s killer - here drawing on an article by Ciara Connolly, a University of Auckland graduate and lawyer.16 At this point, things become quite nuanced.
The jury at Grace’s trial had two options in relation to her death: convicting her killer of murder or convicting him of manslaughter. To convict him of murder, the jury had to be convinced of his mens rea - which under our law would mean he either meant to kill, or was so reckless he didn’t care if he killed or not. He couldn’t have argued that Grace consented to being killed, because our law prohibits a person from agreeing to their own death. This meant the rough sex defence wasn’t available in relation to murder.
But the jury still had the option to consider manslaughter - a crime without the same mens rea as murder. Grace’s killer had the right to argue her death was an accident. With manslaughter a possibility, the judge had to consider whether the rough sex defence should be allowed, using that case by case reasoning we covered through R v Lee. The judge had to ask himself how socially legitimate was the activity that killed Grace, how serious was the risk, and whether it was rational that Grace’s killer believed he had consent.
And the judge decided, yes: the rough sex defence should be allowed in relation to manslaughter. He was clear that Grace wasn’t able to consent to strangulation while unconscious, but explained his decision like this:
… it [was] plausible that in the throes of passion and heavily intoxicated, [the defendant] did not realise that Ms Millane had lost consciousness until after she had died or was fatally injured before he removed his hands from her neck.
You can see we keep coming back to the same place with the rough sex defence: mens rea (he didn’t mean to hurt her during sex) going hand in hand with consent (she wanted the sex that accidentally hurt her). Our approach in Aotearoa, letting people consent to injury short of death, lets a man get much closer to the line at which fatal violence occurs - and arguably, that makes it easier for him to claim that ‘accidents happen’.
Before we move on from the trial, we need to touch on another aspect that was upsetting. If there was already an inherent power imbalance - Grace’s killer was alive to frame a narrative about her, when she could not reply - it was made worse by the way name suppression worked under the circumstances. Grace’s name, along with her sexual history, were not just in the public domain, but shared around the world. Evidence about her killer’s sexual history and track record of violence was also presented; but his name was suppressed, because he had other court cases pending in relation to attacks on two more women. I believe the name suppression was right, because it gave the best chance of further convictions - but to Grace’s family and many other observers, it must have felt like her killer’s dignity took precedence over hers.
If you’re like me then, looking back, you can see the reasoning behind the things that happened at trial; but your heart still hurts and your conscience is bothered. You understand why it feels so counterintuitive, hurtful and unjust to so many.
There’s a looming question here, and we now need to turn to it. We’ve looked at how banning the rough sex defence could impact on people’s sexual autonomy, by taking away their ability to consent to injury during sex. But this isn’t all that’s at stake. If the rough sex defence was banned, would it take away defendants’ right to a fair trial?
To think this through, we need to come back to our now-familiar ideas: mens rea (he didn’t mean to hurt her during sex) and consent (she wanted the sex that accidentally hurt her). This time, we’re going to focus more on the mens rea. Earlier, we covered why mens rea matters: put in a simple way, it’s the moral difference between doing something bad on purpose and doing it by accident.
There’s only one way around the mens rea problem, men claiming they accidentally hurt or killed women during rough sex - and a UK campaigner, the former solicitor general Harriet Harman, has proposed the UK adopt it. What if the legal system just said, too bad? If a person engages in the risky activities of rough sex, it goes wrong and they kill someone, then they should always be prosecuted for murder. It wouldn’t matter whether they meant to kill or not.17 Could this approach work, either in the UK or here?
To weigh this up, I think we need to come back to our question from before: is it really plausible that someone could kill someone else during rough sex by accident? If we think it’s not plausible, and the only people who’d make this kind of argument are trying to justify murder, maybe the ‘too bad’ approach is feasible.
This is a large and complex topic we can’t cover thoroughly here. As we saw, the judge at Grace’s killer’s trial thought that accidental death through rough sex might be plausible. On the other hand, the doctor who examined Grace after her death gave evidence that deaths from sexual asphyxiation (as opposed to strangulation as an act of violence) are ‘incredibly rare’.18
Although they might be rare, there’s an infamous case in our history where one such death occurred.
Renee Chignell was only 18 years old when she killed her client, Peter Plumley-Walker, in 1989. Plumley-Walker came to Chignell’s home in Remuera for BDSM sessions; and on the day he died, she’d left him alone and restrained, including around his neck. When she returned, he wasn’t breathing. She and her boyfriend panicked - and instead of calling emergency services, the pair drove to Huka falls, where they disposed of Plumley-Walker’s body.19
This is not to say that Plumley-Walker’s death is anything like Grace’s: it’s generally accepted that he died accidentally, just as it’s accepted that Grace was killed by a vicious and calculated abuser and murderer. The point here is that a ‘too bad’ approach to mens rea would capture both these diverse situations - and we’d have to ask ourselves whether that would be fair.
Of course, Plumley-Walker’s death happened more than three decades ago, and in specific and tragic circumstances. Chignell was a young woman with very few options. She was being poorly treated by a much older partner. She was practicing BDSM long before the internet, so almost certainly had less access to information on how to do it safely.
Could a death like Peter Plumley-Walker’s, and a case like Chignell’s, still happen today? It’s hard to say - but I’m not sure we can rule it out. If we can’t rule it out, there’s a chance that banning the rough sex defence with a ‘too bad’ approach could lead to unjust convictions.
So, can we do nothing about the rough sex defence? Should we do nothing?
I want to take the ‘should’ question first.20
There are people who’ll look at the trial of Grace’s killer and call it a success, justice working as it should. After all, the jury saw through the rough sex defence. Grace’s killer was convicted of murder and sentenced to seventeen years in prison. Perhaps this is a kind of success, but only if you define success by the narrowest measure - discounting the suffering the rough sex defence caused to Grace’s family, and the message it sent to all women.
I’m haunted by the witnesses at trial who gave evidence they’d been attacked by Grace’s killer. One young woman had also met the man on Tinder. They were meant to share a drink in the city, but he steered her instead towards his apartment. There he filled and refilled her glass, telling her he loved her, but also saying things that began to scare her. She agreed to a sex act. It was then he attacked her.
On the stand, the witness cried as she recounted what happened. As Grace’s killer held her down - pinning her arms, and obstructing her breathing - she struggled against his bodyweight, thinking she was going to die. She managed to turn her head just a little to get a sliver of air, and pretended she was unconscious. He kept going. When he eventually got off her, and she sat up and gasped for breath, he said, “Oh, you don't think I did that on purpose, do you?”.
The witness spent four hours on the stand. Why had she exchanged text messages afterwards with the man she said assaulted her? If she’d really been assaulted, why didn’t the messages say so, or tell the man who'd hurt her how she felt? The defence lawyers asked the witness if she’d simply made it all up, calling her ‘dramatic’ and saying she’d ‘exaggerated’. “You wanted to portray yourself as a bit of a victim”, one lawyer said. The witness explained she was ashamed. She said, "Why would I want to go through this, with my life out there? I don't want to be here, putting all this stuff out here."
The witness told the court she’d been scared of the man who’d harmed her; who knew a lot about her, including her movements. She did what she thought might keep her safe: stringing her abuser along without encouraging him, not cutting contact altogether in case it provoked him. After all, he might show up again in her life.
When her time in the stand was over, the young woman put her head in her hands and wept.
This is justice, meant to keep women safe; but if you’re a woman reader, I ask you this. Did the lines you read above make you feel reassured? Or did they only make you feel afraid? Would you come forward if a thing like this had happened to you, knowing what awaited you in court? Sometimes the ‘protection’ our society offers women doubles eerily as a warning to stay in line.
So, yes: I believe we need to act against the rough sex defence. The question is what we should do.
We started out this piece by taking a step back and acknowledging the bigger picture: our society’s attitudes towards sex, women and consent. One of the best local articles I’ve read about the rough sex defence comes from Melody Thomas, and one of its best paragraphs is this:
If we talked about kink and BDSM, we might … be aware that BDSM and kink practices are routinely engaged in by people who operate within a strong community, where the potential for harm is mitigated by thorough and exhaustive consent conversations. Before anything sexual even begins, it's commonplace to talk about boundaries and expectations and to decide on a safe word, and partners will also check in with each other throughout, and sometimes practice 'aftercare' - ensuring everyone leaves the experience feeling as good or better off as when they went into it.21
Thomas acknowledges there are predators on the edges of the BDSM community, but her point is this: if we changed our societal attitudes, stopped normalising women being pushed into sex they don’t want, men like Grace’s killer would find it harder to run a rough sex defence. The defence thrives only when we hold certain societal attitudes.
Of course, Thomas is right, but changing societal attitudes is slow. The rough sex defence is a problem that needs attention now. What changes could Aotearoa consider? I've found two main ideas.
The first idea is this: Aotearoa should follow the approach in the Domestic Abuse Act 2021, which banned the rough sex defence in England and Wales by restating the rule that people can’t consent to injury during sex. But again, you’ve already joined the dots - there are problems with this approach. It criminalises people’s willing sexual behaviour. For example, it would mean that sex workers who offer BDSM services, including women, could find themselves in trouble with the law (although this too is ethically complicated, because there’s evidence that sex workers are more at risk of being forced into rough sex).22
And this approach doesn’t solve our mens rea problem. As long as a defendant can say he didn’t mean to hurt or kill his victim, all the distressing things about the rough sex defence remain. The defendant can say the woman consented to help his claim he didn’t mean to injure her, he can use her sexual history to make his point, and he can try to capitalise on any ugly societal attitudes that have crept into the courtroom. Critics of the Domestic Abuse Act 2021 - even ones very concerned about the rough sex defence - have pointed this out. They say that for all the Act has been welcomed by campaigners, taking away consent as a defence probably won’t change anything.23
We could look at the approach in the Domestic Abuse Act, but we’d have to be realistic about what it might achieve and the trade-offs involved - especially if it was the only action we took.
The second idea I’ve found holds more promise. To explore it, we’re going to look at the work of another local scholar and judge’s clerk, Nadia Murray-Ragg.24 Again, there’s nuance involved, so I’ll simplify a little.
Aotearoa, like some other parts of the world, has something called a ‘rape shield’ built into our law around sexual violence.25 A rape shield means that in a sexual violence trial, evidence can’t be brought about the victim’s sexual history, except with very good reason. This prevents the defence talking about the kind of sex the victim likes, who she’s had sex with, or her sexual reputation.
Why does the rape shield put a victim’s sexual history off limits? There are a few reasons - but one is that the logic behind airing a victim’s sexual history isn’t really that logical. It relies on the idea that if a woman has consented to a particular sex act before, whether with the defendant or someone else, she was likely to do it again. This doesn’t reflect more modern ideas about consent: something that should be negotiated each time sex happens, and can be withdrawn at any point, not a blank cheque without an end date that a woman writes to any old man who asks. As Murray-Ragg explains, allowing sexual history evidence carries little upside in court - but it has a significant downside. It opens the door to ugly societal attitudes about certain kinds of women who have certain kinds of sex. We saw above how rape myths are still alive and well and influencing courtrooms.
Why didn’t the rape shield prevent Grace’s sexual history being heard at court? The problem was, Grace’s killer wasn’t being tried for sexual violence, but murder or manslaughter. That meant the rape shield didn’t apply. According to Murray-Ragg, there’s no good reason why a case like Grace’s, where the victim is deceased, should be treated differently to one in which the victim is alive. By extending the rape shield to homicide, we could close the door that ugly societal attitudes keep creeping through, at least part of the way.
Whatever ideas we consider, I believe we have to start the kōrero. If we want a future that’s safer for women, we can’t just sit back and let history repeat.
I lost count of the times I cried as I wrote this piece, poring over the names of dead women, their stories, their pictures, the remembrances of the ones who loved them.
It was that visceral kind of crying you try to push down, but it refuses to stay. It made me wonder what it’s like to cry for someone every day, know you’ll do that for the rest of your life.
We gathered for vigils, lit candles. Flowers were left in rows, with written notes. Banners were made, hand-painted with aroha, and hung from whatever they could be attached to. Our rangatahi rallied with a haka in her name. When our Prime Minister spoke, there was a tremour in her voice. She said to Grace’s family, "Your daughter should have been safe here, and she wasn't, and I'm sorry for that."
Grace was a guest to Aotearoa; came here openhearted, excited, curious for life’s next moment. Our manaaki was owed, is owed. We have not forgotten this: I want her family to know it. Through all that happened, they held her in her life and death with love. We need to do the same.
And her dignity, her mana, were not taken - not by her killer or our courts or anything else. They are hers, and always will be; are no one else’s to take.
One of the challenges writing about this topic is the focus on cisgender and heterosexual men and women. Of course, that doesn’t mean sexual violence and the complex issues around it aren’t problems for other groups of people. At the same time, there are complex questions about how society treats violence against some groups of women - often those who are white, middle class, young and attractive - more seriously than violence against other groups of women. These are all important matters needing discussion, but to keep the scope of this piece manageable, I won’t address them here.
Marital rape was criminalised in Aotearoa in 1985, making us a laggard every by poor international standards.
The sources I’ve relied on to explain R v Brown are here:
Where should the law draw the line between consent and culpability in sadomasochism?
Herring, J., & Bows, H. (2021). Regulating intimate violence: Rough sex, consent and death. Child and Family Law Quarterly, 41, 311.
Mackenzie, F. (2020). Consent defences and the criminal justice system: Research briefing–England and Wales. We Can’t Consent To This. Retrieved August, 30, 2021.
Here I want to acknowledge the work of Alison Mau, who essentially argues that while the defence lawyers in the trial of Grace’s killer ran a line claiming to accept BDSM without judgement, they still drip fed the jury ugly societal attitudes.
The New “She Asked For It”: Rough Sex, Victim Blaming and the Grace Millane Trial
Connolly, Ciara. (2021). Should Defendants Be Allowed to Rely on the "Rough Sex Defence" in New Zealand Trials?. New Zealand Women's Law Journal, 5, 123-148.
Connolly, Ciara. (2021). Should Defendants Be Allowed to Rely on the "Rough Sex Defence" in New Zealand Trials?. New Zealand Women's Law Journal, 5, 123-148.
The section that follows draws on these articles:
Men’s violence against women: the blind spots in the Grace Millane trial | The Spinoff
Millane trial: Defence accuse witness of lying | Ron Mansfield, Criminal Defence Lawyer
The New “She Asked For It”: Rough Sex, Victim Blaming and the Grace Millane Trial
Our rape shield provisions were strengthened by the Sexual Violence Legislation Act 2021, which include other improvements to the way victims of sexual violence are treated in court.
I'm so glad I've found your writing again ❤️
Thank you for all the tears that went into this, as well as the research, the thinking. We mourn the dead and keep fighting for the living.
Thanks for your mahi tackling this, Anna. A shame that it still seems to be mainly (only?) women addressing issues of men’s violence.