Hello all, apologies for the mild (moderate) hiatus. The first couple weeks back at uni have consisted of very little lecture attendance and almost perfect club attendance. So in attempt to lock back in, today we’re talking about the rough sex defence. It’s probably one of the most divisive areas of the law, and honestly it should be. We also did our assignment on this, so in theory you could call it knowledge consolidation.
Lock in and enjoy my mid-afternoon musings.
This argument, sometimes raised by defendants, usually men, who claim that a woman’s death or serious injury occurred accidentally during consensual sexual activity involving violence. Translation: I didn’t mean to hurt her, she wanted rough sex. If you’re a woman alive today, you’ve most definitely heard this, or something along the lines in the past.
If your first instinct is to question why on earth this is a thing, so was mine.
Today, I want to unpack what this defence actually is, how it operates in law, why it disproportionately harms women and girls, and why many legal scholars are deeply concerned about its continued use.
It’s good to be back, I hope you enjoy.
First Things First: Is the Rough Sex Defence Actually a “Defence”?
Short answer: No, at least not formally.
There is no statutory defence called “rough sex.” Instead, defendants rely on a combination of:
- Consent — arguing the victim agreed to the acts that caused injury or death
- Accident — claiming there was no intent to cause serious harm
- Lack of mens rea — asserting they didn’t foresee the risk of death or serious injury
So when we say “rough sex defence,” we’re really describing a narrative strategy, not a doctrine. A story defendants tell juries: This wasn’t violence. This was intimacy gone wrong.
Which raises the obvious question: how wrong does intimacy have to go before we call it violence?
(Spoiler: way sooner than some courtrooms historically have.)
The Legal Problem: You Can’t Consent to Serious Harm. Or Can You?
Traditionally in common law jurisdictions (including England and Wales), the rule is that a person cannot consent to serious bodily harm, unless the activity falls into a recognised exception, things like properly conducted sport, medical procedures, or tattooing.
Sexual activity does not automatically qualify.
So in theory, consent should not excuse violence that causes serious injury or death.
In practice? Things get… fuzzier.
Courts have sometimes accepted that defendants lacked the necessary intent for murder or manslaughter because the harm arose during consensual sexual conduct. In other words: He didn’t mean to kill her , this was just sex that tragically went too far.
Which sounds less troubling until you realise how often “sex that went too far” looks exactly like domestic violence with better PR.
Let’s Be Honest About the Pattern
The rough sex defence is not being deployed equally across gender lines. It is overwhelmingly raised in cases where:
- A woman is dead or seriously injured
- A male partner is on trial
- There is a history of coercive control, abuse, or violence
And yet the narrative shifts away from violence and toward erotic accident. The defendant becomes unlucky. The victim becomes reckless. The harm becomes mutual.
Somehow, the woman manages to be both dead and responsible for her own death, which is quite the multitasking feat, honestly.
Why This Defence Is So Dangerous (Legally and Socially)
1. It Normalises Violence Against Women
When courts entertain arguments that strangulation, beating, or extreme injury were just “part of sex,” they help blur the line between desire and domination, pleasure and pain, consent and coercion.
This matters because strangulation, in particular, is one of the strongest predictors of future homicide in domestic abuse cases. Treating it as erotic experimentation instead of lethal warning behaviour is… not great public policy.
Or public safety.
Or public sanity.
2. It Repackages Abuse as Sexual Liberation
There’s something especially insidious about how this defence cloaks violence in the language of sexual freedom.
Now, let me be clear: consensual BDSM exists. People can and do negotiate power dynamics safely and ethically. This blog is not here to kink-shame.
But the rough sex defence doesn’t tend to show up in cases involving negotiated boundaries, safe words, aftercare, or mutual pleasure. It shows up when women are dead.
That’s not sexual freedom. That’s legal fiction with a body count.
3. It Reinforces Victim-Blaming, Even Beyond Death
The defence effectively puts the victim on trial. Her sexual history, preferences, messages, and relationships become evidence against her.
She is interrogated, posthumously, about what she “wanted,” what she “liked,” what she “agreed to.” Meanwhile, the man who caused her injuries gets the benefit of the doubt.
It’s the ultimate evolution of “What was she wearing?”
Now it’s “What was she into?”
Progress. How riveting.
4. It Makes Prosecution of Violence Against Women Harder
When juries are told that the victim consented to violent acts, it muddies the waters around intention and culpability. Defendants may avoid murder convictions or receive lesser sentences, even where the facts show extreme brutality.
And that sends a message: women’s bodies are legally riskier terrain than men’s, and harming them during intimacy may be excusable.
That message doesn’t stay in courtrooms. It seeps into culture.
Legislative Pushback: The Law Is (Finally) Catching On
In response to public outrage and campaigning, particularly by feminist organisations and families of victims, England and Wales passed Section 71 of the Domestic Abuse Act 2021, which clarifies that:
A person cannot consent to the infliction of serious harm for the purposes of obtaining sexual gratification.
In other words: “She wanted it” is no longer a legally acceptable explanation for serious injury or death.
This is a major step forward, though legal reform alone doesn’t dismantle cultural myths about violence, sex, and women’s credibility. (Sadly, Parliament has not yet passed the “Stop Believing Men by Default” Act.)
Still, progress is progress.
The Deeper Feminist Issue: Whose Desire Counts?
At its core, the rough sex defence isn’t really about sex. It’s about power.
It asks us to believe that women’s desire naturally includes pain, fear, degradation, and risk, while men’s desire just happens to involve inflicting those things.
It treats women’s bodies as spaces where danger is eroticised and harm is ambiguous. Meanwhile, men’s violence becomes understandable, accidental, or unfortunate.
It’s patriarchy’s favourite magic trick: turning domination into intimacy and calling it mutual.
But What About Sexual Autonomy?
This is the part where people worry that criticising the rough sex defence threatens women’s sexual agency.
But here’s the thing: protecting women from violence is not incompatible with respecting their autonomy. In fact, it’s essential to it.
True sexual freedom requires:
- Safety
- Mutual respect
- Meaningful consent
- The absence of coercion
Not the freedom to be injured, strangled, or killed, and then blamed for it in court.
Autonomy without protection isn’t liberation. It’s exposure.
Final Thoughts (and One Gentle Joke, Because We’re Still Us)
The rough sex defence represents one of the most unsettling intersections of law, misogyny, and myth, where violence becomes intimacy and victims become evidence.
It reminds us that the legal system doesn’t just adjudicate facts; it adjudicates stories. And for far too long, the story has been that women’s suffering is ambiguous, negotiable, or worst of all, sexy.
Which, respectfully, is not what you want is it.
As women in law, and especially as women educating other women and girls, our job is not just to understand doctrine, but to interrogate whose bodies doctrine protects, whose harm it excuses, and whose stories it believes.
And if anyone ever tells you that “rough sex gone wrong” explains a homicide, feel free to respond with the most devastating legal critique of all:
“That sounds like a crime, actually.”
Bold. Groundbreaking. Revolutionary.
I know this is slightly more serious than my usual tongue in cheek post however it’s an area of the law I have a particular gripe with. I felt it necessary to deal with it the only way I know, this blog. Hopefully this has been both informative and fun, that’s what I always aim to do here.
I’ll back to regular posting now I’ve gotten my life sorted, and purchased a planner (its doing wonders for my time management).
Happy Monday, Lots of love,
TCGC xx
THE COOL GIRL COURT 