Policy paper

Consent to serious harm for sexual gratification not a defence

Updated 3 January 2024

What are we going to do?

The Act clarifies the law by restating, in statute, the broad legal principle established in the case of R v Brown, that a person cannot consent to actual bodily harm or to other more serious injury or, by extension, to their own death.

No death or other serious injury – whatever the circumstances – should be defended as ‘rough sex gone wrong’ which is why we are making it absolutely clear that this is never acceptable. Perpetrators of these crimes should be under no illusions – their actions will never be justifiable in any way, and they will be pursued rigorously through the courts to seek justice for victims and their families.

Justice Minister Alex Chalk

How are we going to do it?

The Act makes clear, in England and Wales, that:

• a person is unable to consent to the infliction of harm that results in actual bodily harm or other more serious injury or, by extension, to their own death, for the purposes of obtaining sexual gratification.
• a defendant is unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex gone wrong’ defence.
• an exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI. This exception is in line with current case law.
• the law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.

Background

Rough sex, including sadomasochistic sexual activity, can involve the infliction of pain or violence, simulated or otherwise, with the aim of providing sexual gratification for the parties involved. This type of activity can encompass a wide range of behaviours and, although it may occur in private and be consensual, the law states that the infliction of serious harm which results in actual bodily harm (ABH) or other more serious injury or worse, will make a perpetrator liable to prosecution. This is irrespective of whether consent had been given by the victim or not to behaviour of this type. The general proposition of law reflecting this position was established by the then Appellate Committee of the House of Lords in the case of R v Brown [1993] 2 W.L,R 556.

The campaign group, “We Can’t Consent to This”, with support from MPs from across the political spectrum, have lobbied the Government on what had been reported to be an increasingly successful use of a claim made by defendants that their victim had died or sustained serious injuries as a result of ‘rough sex gone wrong’. We Can’t Consent to This stated that 60 UK women have been killed by men who made such a claim which colloquially became known as the ‘rough sex defence’. In the last five years, the campaigners also claimed that this defence was successful in seven of the 17 killings of a woman which reached trial, with the man being found either not guilty or, much more frequently, being convicted of manslaughter.

We Can’t Consent to This also reported that women were being seriously injured in what men claim to be consensual sexual violence, stating that it is now commonplace for a woman to be assaulted and abused by men they’re dating, with 38% of UK women under the age of 40 reporting being assaulted, choked, slapped, gagged or spat on, as part of otherwise consensual sex. We Can’t Consent to This stated this is not just a UK problem but one that occurs worldwide and argued that until it is made clear, in law, that consent is not a defence, defendants would continue to make claims in the pursuit of a lesser criminal charge or sentence, or with a view to being acquitted of any crime.

As a result of the We Can’t Consent to This campaign and that of MPs, specifically Harriet Harman and Mark Garnier, the Government committed to ensuring that the law was clear on this matter. Accordingly, the Government tabled an amendment to the then Domestic Abuse Bill which was debated and agreed at Commons Report Stage of the Bill on 6 July 2020. What is now section 72 of the Act clarifies the law by restating it in statute, rather than continuing to rely on the existing common law, particularly in relation to the so called ‘rough sex defence`. This aims to make absolutely clear that a person cannot consent to the infliction of a serious level of harm (or worse) for the purposes of obtaining sexual gratification.

What will the Act do and what behaviour does it criminalise?

What will the Act do and what behaviour does it criminalise? Section 72 of the Act re-states the current law, particularly in relation to the use of the so-called ‘rough sex defence,’ making it clear that a person cannot consent to the infliction of serious harm or, by extension, to their own death, for the purposes of obtaining sexual gratification.

The Act codifies the principle set out in the case of R v Brown [1993] 2 W.L,R 556 that where an assault occasioning actually bodily harm (ABH), or worse, takes place, then public policy requires that society be protected by the use of criminal sanctions, notwithstanding that a person may have consented to the acts inflicted upon him or her. This means that where a defendant claims that the victim’s death, or the injuries they sustained, were the result of’ ‘rough sex gone wrong’, the defendant will remain liable to prosecution for a relevant offence—sections 18 (grievous bodily harm with intent), section 20 (inflicting grievous bodily harm) and section 47 (actual bodily harm) of the Offences Against the Person Act 1861.

The Act does not directly address or make reference to those circumstances in which the victim dies as a result of injuries sustained during so called rough sex. However, the position in relation to serious harm, by extension, covers the position where even greater harm is caused, i.e. a person cannot consent to their death either. A charge of murder will be applicable where there is evidence to support such a charge being brought.

The Act also recognises another aspect of existing case law and, of necessity, makes an exception for certain circumstances involving the acceptance of the transmission of a sexually transmitted infection (STI), as established by the cases R v Dica ([2004] 3 All ER 593) and R v Konzani ([2005] EWCA Crim 706). This exception is necessary in order to recognise that a person may have consensual sex with a party infected with HIV (or other STI) notwithstanding the general proposition that a person cannot consent to an injury above actual bodily harm. Not providing for this exception would amount to a significant and undesirable interference with the right to personal autonomy.

The Act applies to all cases, and so not just to those which occur within a domestic abuse context, where a person consents, or is said to have consented, to the infliction of serious harm (or, by extension, their death) for the purposes of obtaining sexual gratification.

Will these measures apply across the UK?

No. Given this is a clarification in statute of current case law in England and Wales, it will only apply to these jurisdictions.