Engage: How claims of ‘consensual rough sex’ hide abuse and coercive control from courts
These are just two examples of defendants using the “rough sex defence” in assault or homicide cases to claim the injuries they inflicted were the result of “sex games gone wrong”. The Domestic Abuse Act 2021 tried to address this problem by providing that a claim of consensual rough sex is no defence to causing serious physical harm. But, as the Pybus case shows, it does not stop defendants claiming that the serious harm they caused was not intentional. This helps to avoid a murder conviction.
As domestic abuse researchers, we are particularly concerned with how abusers use “rough sex” in intimate relationships, which the Domestic Abuse Act 2021 provisions do not directly address. As our new research shows, perpetrators do not need to cause physical harm in order to use rough sex as a key component of their controlling strategy.
While people in non abusive relationships can and do sometimes consent to physically rough sex, victims of domestic abuse (or at least those who live to tell their stories) describe abusive rough sex as part of strategic patterns of domination known as “coercive control”. Research suggests this is the most dangerous form of domestic abuse, and that evidence of control is a more reliable indicator of future homicide than the existence of physical violence.
Through a complex web of physical, sexual and psychological abuse, a perpetrator keeps his victim in a state of perpetual fear, often for her life. Survivors obey their abuser’s demands, because they know what might happen if they do not. Survivors describe a continuous “state of siege”, as the terror of appeasing the abuser becomes the driving force behind every aspect of their daily life.
The unwanted use of even minor physical force in the context of a sexual encounter communicates to the victim that the abuser is capable of hurting or physically overpowering her. It allows a perpetrator to access sex when and how he wants it, cementing his control and “ownership” over the victim. Seemingly “low-level” gestures, such as forced touching or grabbing send the message that the victim is property for the abuser to use as he pleases, alienating her from her own body and sexuality.
Rough sex and the court
The vast majority of rough sex in coercive controlling relationships never comes to the attention of the criminal justice system. Victims rarely report these experiences because they struggle to articulate them in the language of the criminal law.
Even when they do, the criminal law is poorly equipped to respond. Sexual offences such as rape and sexual assault are of limited use in these cases because of the difficulties of proving a lack of consent. This is particularly tricky in cases where a woman may want to have sex with her partner – just not like that.
It is also difficult to charge these abusers with non-sexual assaults. The offence of battery requires proof that the victim did not consent to the use of force. This is difficult to prove when defendants’ stories of consensual rough sex are accepted as plausible. More serious offences of assault occasioning actual bodily harm and inflicting grievous bodily harm are often inapplicable because the victim’s injuries are not severe enough to charge. Yet our research shows abusers do not need to cause serious physical injuries to maintain control over their victims, they only need to show that they could if they wanted to.
The cases most likely to come to the courts’ attention are those that result in serious injury or death. Yet even here, it appears the courts are all too willing to accept a story of accidental harm caused through consensual sex.
In any event, criminal offences such as rape, assault and murder usually focus on individual occurrences. This doesn’t reflect victims’ experiences of “rough sex” in coercive controlling relationships as part of an ongoing state of entrapment, fear and control. If we only pay attention to some incidents isolated from this broader context, we miss a crucial part of the story.
A new story
Coercive control was criminalised in England and Wales in 2015, in section 76 of the Serious Crime Act. This legislation should have been an opportunity to tell a new story about abusive rough sex.
Drafted properly, a coercive control law would allow the prosecution of rough sex within a controlling relationship for what it is –- an insidious part of a perpetrator’s repertoire as he seeks to control every aspect of his victim’s life. Unfortunately, the offence is poorly drafted and does not include a definition of “controlling or coercive behaviour”.
Our research into the early case law on section 76 shows that a consideration of rough sex as coercive control is completely missing from these cases. Abuse which is simultaneously violent and sexual is still, for the most part, charged under the Sexual Offences Act 2003. This means it is treated as an individual incident rather than part of a broader pattern of abuse. In many cases, it is not charged at all, dismissed as harmless or accidental.
The law needs to make space for a new story: one that recognises rough sex in abusive relationships as an insidious and profoundly harmful form of coercive control.
This article was originally published on The Conversation. Picture (c) Pixabay.
