The Harman amendment: legislation as gesture politics leads to bad law.

Harriet Harman, the former solicitor-general, has put forward an amendment to the Domestic Abuse Bill which, she says, would prevent

a defendant, when he has admitted his actions caused injury, from arguing or raising the defence of consent, if the injuries resulted in GBH or death.”

It is likely to have no practical effect: as the law stands, apart from a few specific exceptions which Ms Harman’s amendment does not address anyway, the defence she describes does not exist.

This is her amendment to the Bill:

No defence for consent

(1) If, in the course of any behaviour which constitutes domestic abuse within the meaning of this Act, a person (“A”) wounds or assaults another person (“B”) causing actual bodily harm, more serious injury or death, it is not a defence to a prosecution that B consented to the infliction of injury.

(2) Subsection (1) applies whether or not the actual bodily harm, more serious injury or death occurred in the course of a sadomasochistic encounter.

According to the campaigning project We can’t consent to this – I hope this is a fair summary – there is an increasing tendency for men to use the “defence” that women they have killed, usually by strangulation, had consented to “rough sex.” As a result, they are either not charged, wrongly acquitted or convicted of the lesser offence of manslaughter; or are at least able to use the woman’s consent as mitigation and thereby to obtain a lighter sentence. The organisation has produced a list of women killed by their partners, where, they say, the defence was used.

Guardian columnist Joan Smith put the argument very succinctly:

“… men are seriously asking juries to believe “she asked for it”, even when what she supposedly “asked” for has ended in death. It is victim-blaming on the most brazen scale and the sole “evidence”, in virtually all of these cases, is the word of the defendant.”

Another columnist, Barbara Ellen called the defence” worryingly fashionable.

The campaign was begun in response to the trial of John Broadhurst for the murder of Natalie Connolly. Natalie died after suffering terrible injuries. Her body was covered with bruises, she had haemorrhaged from an injury to her vagina caused by the insertion and removal of a plastic bottle and had suffered a “blow-out” fracture of her left eye socket. Mr Broadhurst had told the police that most of the injuries (with the exception of the eye socket fracture) had been inflicted during consensual sexual activity. Although Mr Broadhurst was originally charged with murder, the CPS dropped the murder charge during the course of the trial. He pleaded guilty to manslaughter on the grounds of gross negligence and received a sentence of 3 years and 9 months imprisonment.

On the face of it the decision to drop the murder charge seemed inexplicable.

In fact it was not only explicable, it was correct. This was emphatically not because the Crown Prosecution Service accepted his defence that Natalie consented to being beaten. That was not a defence to either murder or manslaughter. It was dropped because murder requires an intent either to kill or to cause grievous bodily harm, and the Crown could not prove either. There was also some doubt over whether the injuries inflicted by Mr Broadhurst in fact caused her death at all. I wrote about the case in more detail at the time.

The murder in New Zealand of Grace Millane again focussed attention on this so-called defence.

One of the main demands of We can’t consent to this, is that the law should be changed. Shanti Das and Rosamund Irwin wrote about it in the Sunday Times:

Men are being given a “free pass” to murder their partners thanks to a “Fifty Shades of Grey” defence, which allows them to claim that their victims wanted to be strangled and beaten, campaigners have warned.

In some cases, lawyers told defendants to lie that they had killed their victims accidentally during consensual “rough” sex, it is alleged. The campaign group We Can’t Consent to This, along with MPs and women’s charities, wants the defence to be banned.”

If this were true it would of course demand a change in the law, as well as the striking off and prosecution of these (unidentified) lawyers.

But it is not true.

There is no “Fifty Shades of Grey” defence. “Rough sex” is not a defence to murder. Nor is it a defence to causing grievous bodily harm. Nor is it a defence to causing actual bodily harm. And as it is not a defence, it is hard to understand what the point of banning it would be. It would be like banning the “I just thought I should take it defence in the law of theft, or “I was racing defence in road traffic law.

Under English law – New Zealand law is not identical – murder consists of killing somebody accompanied by an intent either to kill or to cause grievous bodily harm.

Consent, whether given for the purposes of rough sex or otherwise, is never a defence to murder: thus mercy killing of a terminally ill patient remains murder, even when the “victim” is begging to be killed.

In the unlikely – but not unprecedented – case of a victim asking to be killed in order for his killer to eat his flesh, the victim’s consent, again, is not a defence. German courts ruled on the point in the bizarre case of Armin Meiwes in 2006, and there is no question that an English court would reach the same result. If a person were asking to be killed for some peculiar sexual perversion, their consent would not be a defence to murder.

It is true that in certain situations where the intent is to cause bodily harm, rather than to kill, consent can be a defence. Consent makes a surgical procedure lawful, (although in most cases the object is to alleviate rather than to cause grievous bodily harm).

In a boxing match the object, or at any rate one legitimate object, of a fighter is to inflict concussion – and potentially brain damage – on his opponent: in other words actual or grievous bodily harm. Nobody would consider a boxer to be guilty of GBH because his punch causes brain damage, or of murder if he kills his opponent. Boxing and friendly contests with cudgels, foils or wrestling” are, of course:

manly diversions, [which] tend to give strength, skill and activity, and make fit people for defence, public as well as personal, in time of need.” See Foster’s Crown Cases, 3rd ed. (1792) at p.260, cited in Donovan (1936) 25 Cr. App. R. 1

Another exception is male circumcision. Many would say that when done for non-therapeutic purposes the removal of the foreskin causes serious harm, and it certainly causes actual bodily harm. However, it is lawful if carried out with the consent of the patient, and if the patient is a child, his parents. In 2017 a Nottingham GP, Dr Balvinder Mehat was arrested on suspicion of inflicting GBH with intent for circumcising a 3 month old boy without parental consent. The boy’s grandmother had purported to give consent, although his mother would not have done so. Although Dr Mehat was not prosecuted, a Fitness to Practise Panel suspended him from practice for a month for not obtaining consent from the mother. (In mitigation it was pointed out that he believed the mother had consented, and that he had completed refresher sessions, “provided reflections” and undertaken “various CPD courses”).

However, boxing, friendly fighting with cudgels, and circumcision are specific exceptions to the general rule that a person’s consent cannot make an act causing actual or grievous bodily harm lawful. The position was well-established in law anyway and was put beyond doubt in Brown & others [1994] 1 AC 212] , where the question for the House of Lords was:

Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 and section 47 of the 1861 Offences Against the Person Act?”

The answer was a clear “No.” Consent is not a defence.

The case is well-known.

It involved gay men prosecuted for participating in consensual sado-masochistic sex where actual bodily harm was caused. Amongst other things, the men had inserted sterilised fish-hooks through parts of their penises. Lord Jauncey of Tullichettle laconically observed that:

None of the appellants however had any medical qualifications and there was, of course, no referee present such as there would be in a boxing or football match.”

Lord Lowry was concerned that inserting fish-hooks through the glans should not be regarded as a “manly diversion:”

Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve (which can scarcely be regarded as a “manly diversion”) by withdrawing the legal penalty and giving the activity a judicial imprimatur. As well as all this, one cannot overlook the physical danger to those who may indulge in sado-masochism. In this connection, and also generally, it is idle for the appellants to claim that they are educated exponents of “civilised cruelty”. A proposed general exemption is to be tested by considering the likely general effect. This must include the probability that some sado-masochistic activity, under the powerful influence of the sexual instinct, will get out of hand and result in serious physical damage to the participants and that some activity will involve a danger of infection such as these particular exponents do not contemplate for themselves. When considering the danger of infection, with its inevitable threat of AIDS, I am not impressed by the argument that this threat can be discounted on the ground that, as long ago as 1967, Parliament, subject to conditions, legalised buggery, now a well-known vehicle for the transmission of AIDS.”

The decision in Brown, or at least the rationale behind the law, has been questioned. The Law Commission produced a report in 1995. It pointed to the widely accepted principle that “every human being of adult years and sound mind has a right to determine what should be done with his body.” It tentatively suggested that the intentional or reckless causing of any injury to another person, other than “seriously disabling injury,” should not be criminal if the person injured had consented to the injury.

The Commission published a number of responses it had received from many people, men and women, who regularly engaged in sado-masochistic sex which might sometimes cause bodily injury. This is one example:

I am a very active and independent woman. But I have also enjoyed taking a very submissive role during sex. To me an essential part of taking a submissive role is that my partner punishes me. This punishment would typically involve him spanking me very hard or using a cane or a whip on my behind. It is often likely that this punishment would leave more than transient and trifling marks. This is an activity from which I derive immense sexual satisfaction. Not only that, I also find the effect of giving up control and taking a submissive role to be a very relaxing experience. It has always been very clear in my mind that I have willingly sought these punishments for my own sexual and emotional satisfaction.”

Like many of the Law Commission’s proposals this one was quietly placed on a dusty shelf.

So back to Ms Harman’s amendment. It somehow manages both to restate and to confuse the law.

Here is the proposed subsection (1) again:

(1) If, in the course of any behaviour which constitutes domestic abuse within the meaning of this Act, a person (“A”) wounds or assaults another person (“B”) causing actual bodily harm, more serious injury or death, it is not a defence to a prosecution that B consented to the infliction of injury.

It restates the law because if “A wounds or assaults B causing actual bodily harm, more serious injury or death” the law does not now – except with the narrow exceptions of “manly diversions,” circumcision etc – recognise B’s consent to the infliction of injury as a defence.

The confusion arises partly because the amendment applies only to “behaviour which constitutes domestic abuse within the meaning of this act.”

Does this mean that if the “wounding, causing of ABH or more serious injury etc” is not caused in the course of “domestic abuse” consent will then be a defence? No it does not. The amendment does not reverse Brown. If the amendment were passed the law would still be identical whether or not the injury was sustained “in the course of domestic abuse.” The reference to domestic abuse adds nothing that I can see and simply serves to confuse. The “active and independent woman” who derives “immense sexual satisfaction” from having her husband cane her would still not be able to give lawful consent.

And there are other problems. Domestic abuse” is defined very widely, but it only applies to people who are, in the words of the bill “personally connected.” This includes spouses and civil partners and also people who are, or have been, in an intimate personal relationship with each other.” It is a phrase which is used in other legislation, although we have not yet had any judicial interpretation of its meaning. It is probably something that is easier to recognise than to define.

However, sex, it is fair to say, often occurs outside such relationships. If two people who have never met before agree to engage in “rough sex” with no strings attached, the Harman amendment would not apply.

Perhaps that does not matter: after all the amendment doesn’t seem to have any legal effect anyway. On the other hand, if the amendment does have some effect, and presumably at least some of its supporters believe that it does, why restrict its application to domestic settings? “Rough sex” is as likely to take place in casual encounters as it is within a relationship. If wives and girlfriends are in need of the supposed protection of the Harman amendment, why not casual partners too? Why not sex workers? Is there any rationale for denying all sexual partners the same legal protection?

As an illustration of the point, consider the case of Grace Millane herself.

If an identical murder happened in this country if the Harman amendment were in force, it would not apply to a future Grace Millane. She was not in an “intimate personal relationship” with her killer: she had just met him on Tinder. A law outlawing a non-existent “rough sex defence” which does not apply on a first date is doubly absurd.

Sometimes, if a law is complicated or ambiguous, a statutory clarification or codification is helpful. Here the law is crystal clear. In the unlikely event of the Harman amendment having any effect at all, it would be to introduce confusion into an area of the law where, for once, none exists. The slew of recent articles incorrectly asserting that men are increasingly “using the rough sex defence” to get away with murder suggests that the campaign to ban a non-existent defence has introduced that confusion even before the amendment has been debated.

That is not to say that the current law is perfect. The Law Commission was right to point out that the criminalisation of consensual sexual practices causing only minor injuries is an infringement of personal liberty which is hard to justify in a free society. If people want their partners to stick fish-hooks in their genitals the law should not stand in their way. On the other hand there may well be a strong case for a specific ban on some particularly dangerous practices even if they do not usually cause any injury at all: strangulation and asphyxiation spring to mind. Instead of addressing a real issue Ms Harman has produced a statutory obfuscation as a solution to an imaginary problem. Legislation as gesture politics invariably leads to bad law.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

12 thoughts on “The Harman amendment: legislation as gesture politics leads to bad law.”

  1. There’s a whole campaign based around something that doesn’t actually exist – that “she consented” is a defence when charged with murder following a sexual encounter. I despair sometimes

    Great piece by the way.

    1. Yes, another specific exception to the general rule. It’s mentioned in Brown. Unlike circumcision though, parents can’t give consent to their children being tattooed. See the Tattooing of Minors Act 1969. Not sure if anyone’s ever been prosecuted under it though.

      1. Am I right in thinking that parental consent isn’t required for piercings. A 10-year-old boy (but not a girl) could walk into a piercing parlour (or whatever they’re called) and ask for his nipples to be pierced.

        I’ve seen policy papers in the realm of social care (fostering) and medical care (consent to surgery) that cite the science on consent, i.e. mainly the eight or so papers by Priscilla Alderson et al. in the 1990s and early 2000s, stating that professionals in those arenas should not assume that ‘even very young children’ are capable of informed consent (to foster care decisions, to medical interventions) ‘if appropriately informed’. The general rule seems to be that the authorities are willing to accept children’s capacity to give informed consent when it suits them (i.e. the authorities or, more broadly, society). The most glaring inconsistency in this regard, which hit the news again towards the end of last year, was the gap between the age of criminal responsibility and the (so-called) age of consent. A child aged 10+ can be held culpable for his/her criminal actions because he/she is deemed sufficiently capable of understanding the nature and consequences of those actions. By contrast, a child under 16 cannot give informed consent to sexual activity as he/she is not deemed sufficiently capable of understanding the nature and consequences of such activity. Is the picture muddled further by the fact that in other arenas policy papers are telling professionals to accept that much younger children are capable of consent, making arguments surrounding consent to sexual activity sound like instances of special pleading?

        To bring this back full circle (because it’s the piercing issue I was most interested in exploring), what do we think about the idea of a young boy being able to get a nipple piercing? One can argue, of course, that it’s unlikely a 10-year-old would seek such a thing, that it’s unlikely a 10-year-old would go to get a piercing without his parents, and that it’s quite possible the piercing parlour would refuse to perform the procedure without the green light from a parent or guardian, but these are practical considerations. At least on a theoretical level, no objection is enshrined in the law (which prohibits only genital piercings in boys and girls under 16, or nipple piercings in girls under 16) for the simple reason that the 10-year-old is deemed capable of consenting to such a procedure and by extension, one can reasonably infer, sufficiently capable of understanding the nature and consequences of such a procedure.

        It hasn’t escaped my notice that some traveller communities are keen on giving their babies proper piercings. Mind you, vast swathes of the world’s population mutilate the genitals of male babies on the grounds of superstition, which I find an abhorrent practice.

        1. I think piercing is a grey area, and I think it depends upon the piercing. Ear piercing seems to be accepted whatever the age. Nipple piercing is, I suppose, an exception to the general rule that consent is not a defence to ABH,though I think even with parental consent it should be – and probably is – unlawful to pierce a 10 year old’s nipple. Genital piercing is another very tricky area. I would say that for a man under 16 – or possibly 18 – his, or his parent’s consent cannot be a defence to ABH. But with adults how, if consent is no defence to ABH with a sterilised fish-hook temporarily piercing the foreskin, can consent then be a defence to a sterilised “Prince Albert” permanently, or at least semi-permanently piercing the tissue of the penis?

          With women and girls we have a whole new layer of complication. The S.1 of the FGM act 2003 says:

          “A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.”

          “Girl” incidentally is defined in S.6 of the Act to include “woman,” so age itself is irrelevant, as is consent (that is, you cannot consent, even as an adult, to an act which amounts to Female Genital Mutilation, as defined by S.1 of the Act). Quare however whether a piercing is a “mutilation.” But if it is not, then what about very minor forms of female genital cutting which may leave no permanent change in the appearance of the genitals? And what, indeed, about labiaplasty which can involve major “excision” of the female genitals for cosmetic reasons? Yet lesser excisions for religious or cultural reasons are forbidden, even on adult women, and irrespective of consent.
          And that’s before we even get onto male circumcision which I agree is an unpleasant practice when performed on infants, which is not to say I think it should be criminalised.
          So yes, the law on this subject is an incoherent web of inconsistencies and contradictions.

          1. Infant Male circumcision is an interesting one. There really is no logical reason for it being legal (I can’t thing of any other permanent non medically mandated mutilation of infants that is legal) other that the fact that it would offend lots of religious people if it was made illegal and create a massive crisis with no doubt mass acts of civil disobedience.

            That may be a very good pragmatic reason for not making it illegal, but let’s at least be honest about it: we allow children to have their bodies permanently altered because we don’t want to challenge the religious beliefs of their parents.

  2. I was under the impression that the question of consent was very much a moot point (rather than an irrelevant point) in the Meiwes case. In any case, as I see it there are two main reasons why we find ourselves muddled on the matter of consent in sexual issues more broadly: 1) because our illiberal efforts to expand the purview of proscriptive legislation are spurred on by the basic impulse to police and control other people’s sexual conquests and sexual expression rather than by a genuine desire to protect; and 2) because our notion of consent (and who is capable of giving it under what circumstances) is itself muddled, having never been based on any science and being bandied round inconsistently to suit partisan agendas.

    The farce will continue until the full purport of these observations is recognised.

  3. The “manly diversions” is a good one. It’s difficult to see why it should be fine to repeatedly punch someone in the face and not fine to stick a sterilised fish hook in a penis on the grounds that the former is manly and the other not….

    On the serious point reading that Brown judgment with its scarcely disguised contempt for gay sex – its legal but not something we really want to encourage – shows how much mores have change in the last quarter century.

    1. Indeed so. The fish hook business would seem to require a considerable degree of manly courage. Speaking for my cowardly self, I’d rather fight Tyson Fury with cudgels than let him anywhere near my penis with a fish-hook.

  4. Harman seems to thrive on being introduced with the title “QC” and then misrepresenting the law to spread fear and confusion so she gets attention about how she would “solve” it. It isn’t just children and teenagers who behave badly to get attention.

  5. Harman has always had her own agenda, right back to her early politicking feminist days. Like so many with an agenda she expects the law to be formed around her personal crusade. Some laws are complicated and complex in nature and this seems like it here.
    On a separate subject I have never entertained putting a fish hook through my genitals, although I have said in the past that I’d try anything once. On further reflection I will have to stop saying this.

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