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.
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.”
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. Continue reading “The Harman amendment: legislation as gesture politics leads to bad law.”