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But what if she did consent?

The BBC reports,

‘Rough sex’ defence will be banned, says justice minister

The so-called “rough sex gone wrong” defence will be outlawed in new domestic abuse legislation, a justice minister has told MPs.

Alex Chalk said it was “unconscionable” that the defence can be used in court to justify or excuse the death of a woman “simply because she consented”.

“Simply”? Is the fact of her consent unimportant, then? If a woman (or indeed a man) chooses to engage in rough sex and as a consequence is accidentally killed by their partner then that does excuse their death, in the sense that any person who accidentally kills another person is excused from the guilt of murder. Depending on circumstances they may be guilty of a lesser crime, reckless endangerment perhaps – I do not know the legal details. But murder requires an intent to kill or cause grievous bodily harm.

He said it would be made “crystal clear” in the Domestic Abuse Bill that it was not acceptable.

The bill, for England and Wales, is due to become law later this year.

Jess Phillips, Labour’s shadow minister for domestic violence and safeguarding, spoke on an amendment proposed by Labour MP Harriet Harman and Conservative MP Mark Garnier to the legislation, to prevent lawyers from using the defence, but withdrew it following assurances from Mr Chalk.

The campaign group We Can’t Consent To This, which wants the defence outlawed, said the minister’s response was “a big step forward”.

The very name of their group treats adult women like children. If this group wants to ban rough sex, they should have the guts to come out and say so. Some of their complaint seems to be that the rough sex defence has been used by men who truly were murderers to delude a jury into acquitting them. But the same could be said of any defence against any criminal charge: all of them will have at some time been successfully used to enable guilty men to go free. What alternative system do they suggest? The great eighteenth century jurist William Blackstone said, “It is better that ten guilty persons escape than that one innocent suffer.” Would they prefer to reverse that ratio?

30 comments to But what if she did consent?

  • Nullius in Verba

    The rule should be the same as for surgeons. They get your consent before they operate on you, but if you die or suffer grievous bodily harm during the operation, well, their rule that “you can’t consent to that” means the surgeon should be prosecuted for murder or GBH or whatever. We’ll see how that works out.

    On the other hand, it shouldn’t be available as an after-the-fact assertion by the killer, without evidence. It needs to be clear that they both knew what they were consenting to, had agreed the safety procedures, and (most importantly) both understood the risks. (There are generally risks to both sides.) And ideally, had checked that they had the expertise/experience/training to be able to do it safely, and all this needs to be recorded and specific to each session. Amateurs doing dangerous stuff with no idea of what they are doing should face the same considerations as “amateur surgeons”. A bit of common sense is needed – specifically, awareness that pornographic fantasies are often made up, and highly unreliable as a guide to safe practice.

    At the moment, the statements are vague waffle. We’ll have to wait to see how it affects the wording of the bill.

  • APL

    “Labour’s shadow minister for domestic violence and safeguarding,”

    ‘Safeguarding’ another meaningless phrase inserted into unnecessary legislation.

    Murder – the unlawful premeditated killing of one human being by another.
    Manslaughter – the crime of killing a human being without malice aforethought, or in circumstances not amounting to murder.

    A perfectly adequate distinction.

    Another load of bollocks is the ‘online harms’ bill. Apparently MPs are really, really worried about ‘online harms’, but can’t be bothered to actually get plod out on the streets of Rotherham, Oxford, Birmingham, Bristol, Manchester to arrest those perpetrating actual ‘on-street harms’ – otherwise know as Rape, intimidation, victimization, general thuggery.

    Then there is the farce of concurrent sentencing. Our old friend Reynhard is serving Eighty eight concurrent life sentences, and the biggest joke “with a maximum of twenty years”, so that’s not even one life sentence then.

  • Jimmers

    Would they prefer to reverse that ratio?
    Of course they would, if it’s a man being convicted of something with a woman victim

  • Penseivat

    I can’t wait for the various definitions of rough sex. Thousands of women bought the ’50 shades’ series of books, making the author a multi millionaire. Ignoring the fact that stories were, in my opinion, trite, badly written, and gave bad advice regarding bondage and BDSM, this must show that these women had fantasies about being tied up, spanked and ‘taken’. Amazon and book shops advertise erotic books along the same lines which, apparently, sell very well.
    On the economic side, just think of all the firms selling floggers, paddles, cuffs, blindfolds, etc, who will have to close down.
    Human beings are sexual creatures and, as far as I am aware, are the only creatures who have sex for pleasure as well as for just procreation (never mind what the Catholic church suggests). Human beings also have curiosity, meaning that they may experiment with what they and their partner want to do to improve their sex life and increase their pleasure, possibly leading to what can be termed ‘rough sex’. It goes without saying that respect for each person must play a large part, with safe words and understandings of limits. Should this be something that the government become involved in to this extent?
    Many years ago, when I was a much younger man, I had a relationship – very brief I will admit – with a lady who liked to be spanked, which could well be included in the ‘rough sex’ definition. Not being as worldly wise as she was, I found myself out of my comfort zone and it ended when she leaned over the kitchen table, pulled up her skirt and said, “Hurt me. Be cruel.” So I told her she had fat ankles and no dress sense.

  • Plamus

    NiV:

    It needs to be clear that they both knew what they were consenting to, had agreed the safety procedures, and (most importantly) both understood the risks. (There are generally risks to both sides.) And ideally, had checked that they had the expertise/experience/training to be able to do it safely, and all this needs to be recorded and specific to each session. Amateurs doing dangerous stuff with no idea of what they are doing should face the same considerations as “amateur surgeons”.

    So you are suggesting a licensing regime for risky sex?

    “A bit of common sense is needed…”

    Indeed. This is not how ordinary people engage in sex a lot of the time. There are often drugs and alcohol involved, as well as people who are young, reckless, and not educated enough. The reasonable, prudent, cautious people who would follow your recommendations probably do not need much protecting to begin with. If you create rules that you know a lot of people just will not follow… well, see the War on Drugs.

  • Firstly, I’m all for murderers being punished, and being likely to be punished. (And +1 to APL’s noting that anyone whose priority was not virtue signalling would spend more time fighting other kinds of murder.)

    Secondly, jurors, like women, need to be treated as adults. I’m all for fewer get-out-of-jail-free cards but – or I could say, and – how will you prevent a jury knowing of actual evidence of consent? Will it be withheld, leaving the jury to guess in general (and so guess in that overwhelming majority of cases where there was no consent).

    Thirdly, however, as a look at the other side, let’s examine a couple of historical cases of death after ‘consent’.

    a) In early 1934, Goebbels (still unsure which way to jump in the developing more-revolution SA versus consolidate-first Goering et al), held a party for the SA leaders on an island in one of the Berlin rivers. Knowing the SA, he hired young men from the Berlin demi-monde as torchbearers lighting the way along the floating causeway to the island restaurant. At the end of the evening, the returning SA threw themselves on these youths and one was drowned because the drunken SA official failed to notice he’d forced the youth’s head under water during the proceedings. (It was rather dark, the evening being late and torch-bearers having been turned to other uses.)

    While there may have been coercion and procuring, it is obviously possible the youth had indeed ‘consented’ to the paid evening job. IIRC, it was all kept quiet and the SA leader never needed a court defence. (He was, of course, killed for other reasons in the middle of the year.)

    b) Decades back, there was a case in England where it was beyond any doubt that the girl had repeatedly written and spoken her wish that her boyfriend’s attentions end fatally. After many survived (and enjoyed) episodes, one day they did. The boyfriend immediately turned himself in to police, confessed to murder and FWIW appeared distressed.

    As the evaluating psychiatrist, in whose case notes I found this long ago, recorded (this summary quote is from memory):

    Her fantasy ended before death, but his, though not intending to, proved able to go further when sufficiently stimulated.

    I agree with the psychiatrist that she desired the moment before death, not the moment after, although she desired that moment before so much that her words and writings necessarily implied the opposite. I likewise agree with the confessing boyfriend that he was no accidental killer but a murderer, though not a premeditated one, despite his words (spoken to fuel her fantasy) likewise necessarily implying that he did premeditate it.

    Hard cases make bad law. Were it very strictly confined to cases of actual death (yes, we can never trust the PC’s promised limits on anything, but leave that for now) then I can see an argument for considerable extra culpability attaching to a bad outcome whenever the dangers are clearly present.

    I predict you’ll find a case whose outcome you dislike whatever legal regimen you choose.

  • Nullius in Verba

    “So you are suggesting a licensing regime for risky sex?”

    No. Just legal guidance and practical advice/education on how to stay safe and not get yourself into trouble or accidentally hurt anybody. It’s actually what sex education in schools is for.

    “Indeed. This is not how ordinary people engage in sex a lot of the time. There are often drugs and alcohol involved, as well as people who are young, reckless, and not educated enough.”

    Sure. And some of them are going to do twenty for murder. Or die. There’s a price for ignorance.

  • Snorri Godhi

    WRT the distinction between murder and manslaughter, a historical note:
    The Vikings made no such distinction.
    Instead, they distinguished between open killing (where the killer immediately notified the family of the victim) and ‘secret killing’.

    In the former case, the killer could usually (but not always) get away with paying the family of the victim a sum equivalent to somewhere between 20 and 80 cows.

    In the latter case, the killer would usually, if not always, have all his possessions confiscated, and would be exiled for at least 3 years.

    Maybe we should think of it as the difference between plea bargain and no plea bargain.

  • Fraser Orr

    @Penseivat
    Human beings are sexual creatures and, as far as I am aware, are the only creatures who have sex for pleasure as well as for just procreation

    Not true. Bonobo apes are randy little buggers, and will copulate as casually as you or I would shake hands. (Oh, wait, that isn’t a great simile any more.) Nevertheless, they use sex as a community bonding mechanism in exactly the same way humans do. I imagine that is probably true of many species. FWIW, I am not sure most animals are aware enough to know that they are having sex to procreate. You might argue that the opposite of what you said is true. All animals have sex because it feels good, and only humans are aware that in doing so they may be procreating.

    As to the OP, I mean if you engage in sex that ends someone’s life then an accounting has to be had. A mere claim that “she/he liked it rough” surely isn’t enough. It is common enough in communities that engage in such edgy behavior, and it makes perfect sense, to have some sort of written consent.

    FWIW, it is an interesting question as to what consent even means. If one is hyped up on drugs or alcohol, then at some point you lose your ability to consent (not because you are a child but because you are mentally impaired), and the same is true in some extreme sexual situations. I think it is too X rated a subject to discuss here, but I am convinced there are circumstances when a human’s brain is too befuddled to consent, even absent drug consumption.

    So even with written consent, I suggest that it would have to be collected in a manner where such consent can be given, and if someone actually died, you have better be damn sure that the consent is unequivocal and beyond challenge.

    I think it is also worth saying that even if he/she did consent there is still an obligation on the other to act without recklessness. This is no different than if I get in a car with you (giving my consent) and you drive like a maniac, ultimately killing me. Your recklessness is not excused by my consent.

  • bobby b

    ” This is no different than if I get in a car with you (giving my consent) and you drive like a maniac, ultimately killing me. Your recklessness is not excused by my consent.”

    Just as a “fun facts” sort of thing:

    You know those ticket waivers you see on parking stubs, amusement park passes, and airplane tickets absolving the corporate drafters from blame for all things for all time anywhere?

    Forget them. Corporation will still pay damages to you if your harm occurs because of their negligence (which is an even lower standard than recklessness.)

    (Of course, if your harm isn’t because of their negligence, you’re out of luck. As you should be, and actually already are, in theory.)

  • Used to be Banned

    Would that be the same Harriet Harman who supported PIE which promoted the idea that children could give ‘consent’ to sex with an adult ?

  • Fraser Orr (June 18, 2020 at 12:32 am) has a point that Penseivat’s (June 17, 2020 at 5:58 pm) argument – that in animals, sex is for procreation not fun – can be asserted in reverse form as (im)plausibly as in Penseivat’s original, but I’d see it as one of C.S.Lewis/Barfield’s ‘unities’. It’s like asking if animals eat to stay alive or because they’re hungry. The distinction is not too sensible to query, because not that possible to draw, except in humans, who can of intent make it.

    Speaking of animal-like impossible-to-resolve distinctions, yes indeed, Used to be Banned (June 18, 2020 at 3:03 am), that is the very same Harriet Harman who affiliated the Paedophile Information Exchange some four decades ago. How times change! (Not!) Some people grow wiser as they grow older but I doubt Harriet Harman has even grown phonier; she’s still full of it all the time. And it might be as pointless to ask her what she really thought then or thinks now as to ask a bonobo chimp what that sexual display really meant. (Apes lack language so sometimes use sexual gestures for communication. I fear Harriet would not approve; often, the sexual gestures chosen to express given meanings convey crude gender stereotypes.)

  • Nullius in Verba

    “FWIW, it is an interesting question as to what consent even means. If one is hyped up on drugs or alcohol, then at some point you lose your ability to consent (not because you are a child but because you are mentally impaired), and the same is true in some extreme sexual situations.”

    That’s the difference between “consent” and “informed consent”.

    “Informed consent” means you understand what you are consenting to (i.e. you are not deceived or ignorant about the potential consequences and risks), and can rationally weigh up the risks (so not insane, drunk, drugged, mentally impaired, or a child too young to understand). There are only separate rules for children precisely because they are considered mentally undeveloped and thus cannot give informed consent, although as in most things the line is blurred. Some children are more aware and have better judgement about some matters than some adults, who never ‘grow up’.

    It’s a complicated subject. There are matters nobody is informed on. There are common beliefs that others would argue are deception and delusion – e.g. religions and cults. If you consent to something believing it buys you everlasting life-after-death in heaven, is that truly ‘informed’? What if the person explaining it to you is themselves wrong or deceived, but genuinely sincere? Who bears the blame if they turn out to be wrong? (The science was wrong! It seems radium toothpaste is not good for you, after all!) What if you make an informed choice to get drunk, and then make various bad choices as a result – are they considered ‘informed’ because of the original decision to get in that state, or ‘uninformed’? What about ‘conditional consent’ – consenting to something on condition something else happens later – “You can if you’re going to marry me next month” sort of thing – is it still consent if the event promised does not happen? What if you change your mind? Can you rescind consent already given? How much understanding is enough? Is it sufficient to have a vague intimation that “bad things can happen”, or do you need to know the precise medical details and exactly what it feels like?

    There are lots of interesting debates to be had about it.

  • NickM

    I’m vaguely surprised nobody has mentioned the elephant in the room*. Risk in and of itself can be a massive turn-on.

    “It was like feasting with panthers. The danger was half the excitement” – Oscar Wilde.

    People sometimes do things because they are dangerous.

    *Now that is a very dangerous sexual antic… Unless you are also an elephant, obviously.

  • NickM

    NiV,
    “exactly what it feels like?” – isn’t the anticipation – even worry – a thrill? If you knew beforehand what doing x would be like it’s not much of a discovery when you do x.

    Also, kinda related… There is the trust thing with sex. And that is quite a thrill in itself. You are trusting someone else too an extreme extent.

  • Nullius in Verba

    “Risk in and of itself can be a massive turn-on.”

    Yes, it’s probably a psychological phenomenon called “misattribution of arousal”. The “two-factor” theory of emotion says that emotions consist of a general psychological arousal mechanism, common to all emotions, and a cognitive label that deduces what emotion it is from what you are currently experiencing or thinking about. The stronger the arousal, the more intense the emotion. But this commonality of mechanism means that the intensity can get transferred from one emotion to another.

    Thus, scary experiences (fairground rides, scary movies) can enhance other emotions, which is why they’re so popular for dates. Some of the most intense emotions you can feel are fear, shame, embarassment, and humiliation, which if combined with a sexual experience can corresponingly intensify the sexual arousal by misattribution. Furthermore, it turns a regulatory negative emotion into a positive one, and the sign-change can lead to uncontrolled positive feedback. So once experienced (and feelings of shame/embarassment/humiliation are not uncommon during courtship), the feedback cycle starts, and can run out of control. The nearer you get to the edge of disaster, the more intense the feeling, and so the more you want to do it. It’s addictive.

    The question of whether addicts can give informed consent is an interesting one.

  • Snorri Godhi

    Risk in and of itself can be a massive turn-on.

    That reminds me of something the late Christopher Hitchens wrote, about a peer* of the Realm who most enjoyed sex in public toilets when he could go to the House of Lords right afterwards, to rail against homosexuality.

    * whom Hitchens did not name.

  • Eric

    Of course, if your harm isn’t because of their negligence, you’re out of luck. As you should be, and actually already are, in theory.

    They’ll still pay if it’s cheaper than defending a lawsuit.

  • bobby b

    “They’ll still pay if it’s cheaper than defending a lawsuit.”

    It’s cyclical, actually. Insurers do make cost-of-defense offers, but every so often they see that everyone is relying on those offers and bringing garbage cases, so they will suddenly stop making offers to settle, and start defending every single case to the hilt.

    It’s expensive, but it backs off the plaintiff bar from flooding the zone with nuisance lawsuits for a period of time. It’s no fun to have to explain to a bunch of clients that that $12k settlement you were sure of just isn’t going to happen.

    When that happens, it’s a profitable time to be an insurance defense lawyer!

  • Fraser Orr

    @bobby b
    It’s cyclical, actually. Insurers do make cost-of-defense offers,

    I often thought a good business would be an organization that I would tentatively call “Go F**k Yourself Corp”. Basically the premise is that they go around to various businesses and offer an insurance policy to defend against nuisance lawsuits (I guess you’d have to set some bar for what that means). And if one of their clients is sued then they fight back, aggressively, with all their might, including suing for costs when the plaintiff loses, even if the plaintiff doesn’t have funds. And, if possible also go against the lawyers on the other side if there was even a hint of unethical behavior.

    The clients could have a badge that they displayed prominently saying “We keep our customers costs down by aggressively defending every trivial lawsuit. We will not settle. Sue us? Go F**k yourself.” I think the ambulance chasers might go somewhere else. But I am also sure I don’t know what I am talking about.

    People seem to love PLs. I know they do some good work, but I think people see them something like a lottery ticket. I always think of that movie with Julia Roberts in it. What was it? Erin Brockovitch. It is the sad story of a cancer cluster allegedly because of some chemical in the groundwater from PG&E. The thing is that they say it right in the movie. 40% + costs of the settlement money went to the lawyers. So the poor kid dying of cancer gets a check for $25k, while the lawyer drives off in his Lamborghini. There is something deeply wrong with that.

    My other example of disgusting PLs is… I don’t know if you remember they used to make this thing “Airborne” which was basically a fizzy tablet with Vitamin C in it. They made some health claims that were not verified by the FDA. So a group of PLs got together a class action. They sued the company which eventually settled, I believe, for $28 million. Each of the people supposedly harmed by this outrage could get a full refund on the cost of the product they bought, if they had a receipt, limit 2, which is to say about $3. While the law firm? They walked away with what, probably ten million bucks. Why? Because people might have been over confident that vitamin C slightly reduced their chance of catching a cold…. That is a real victory for civilization and truth.

  • Phil B

    Then there is this …

    https://worldnewsdailyreport.com/woman-sues-samsung-for-1-8m-after-cell-phone-gets-stuck-inside-her-vagina/

    Being America, I bet she gets a payout too. The comments regarding Apple and not eating the product is another WTF? one.

  • bobby b

    Fraser Orr – there are some small boutique insurers out there – selling mainly Professional Liability/Errors and Omissions coverage, for docs and lawyers and other professionals – who sell a policy endorsement that promises just that sort of defense for every claim.

    It’s expensive, but some people like it because giving in to a lawsuit that impugns your professional capabilities just because it’s cheaper isn’t an acceptable option for them. Insurers aren’t normally worried about your professional standing and reputation – unless you pay extra for it. (As it should be, I hasten to add.)

  • What happens, say, if a man is spanking a girl and he dies of a heart attack? Does she get done for murder?

  • Snorri Godhi (June 18, 2020 at 9:12 pm), your (and likely Hitchens) analysis reminds me of Garrett Mattingly’s character study of Henry III.

    At intervals the merrymakers would froth out from the light and music of the Louvre to cut capers in the public streets while His Most Christian Majesty in one odd disguise or another, but most often in that of a maid of honour, whooped and giggled in the centre of a knot of those handsome young courtiers the Parisians called his mignons. The Court never seemed to go to bed, and sober citizens grew accustomed to encountering the revellers, and avoiding the more rowdy of them, at any hour. The only interruption of the gaiety was when the King would suddenly hurry away, change his carnival finery for a penitent’s course gown and be off to his favourite convent of Capuchins in the faubourg St Honore where he was said to spend whole days on his knees, fasting and scourging himself, weeping and praying. There was no hypocrisy in these devotional excesses. They were not meant to conciliate public opinion – nor, in fact, did they. In the anguished contrition of the convent as in the hysterical follies of the carnival Henry indulged his passion for self-abasement without much regard for the spectators. One may guess that the tears and floggings gave a sharper zest to the amusements that were sure in a day or so to follow. (The Defeat of the Spanish Armada)

    People can consent to some pretty rummy things, both of hysterical folly and of self-scourging excess. As I remarked, hard cases make bad law – though the King of France, of course, was rather above the law. As an English schoolboy once wrote:

    The King of France was subject to no earthly control – and no divine control that was perceptible.

  • darthlaurel

    This is exactly how rape, incest, life of the mother exceptions turned into abortion as birth control. Edge case legislation always results in insanity.

  • Nullius in Verba

    “Edge case legislation always results in insanity.”

    Edge cases always mess up the neat world of moral absolutists. You could equally well say that it was the campaign against abortion as birth control led to the legal insanity of also banning it in cases of rape, incest, and the life of the mother.

    If you got the principles right, there should be no edge cases. The existence of counterexamples to a moral theory implies the moral theory is wrong.

  • Fraser Orr

    bobby b
    Fraser Orr – there are some small boutique insurers out there – selling mainly Professional Liability/Errors and Omissions coverage

    Interesting. Thanks for the info.

  • Snorri Godhi

    Niall: it was my understanding that the peer who confessed his vices to C. Hitchens was totally insincere in denouncing homosexuality in the House of Lords: he did so only for the thrill.

    Of course, either Hitchens or myself might have misunderstood.

  • Snorri Godhi (June 20, 2020 at 8:27 pm), that was my understanding of your/Hitchins understanding – hence its reminding me of Garrett Mattingly’s character study (one of several insightful ones in that book, though, perhaps from a very understandable distaste for the Duke of Guise, Mattingly’s final summing up, when he describes King Henry III’s death late in the book, is a bit kinder than mine would be.) I recommend the book to anyone interested in Elizabethan history, or just in a good read.

  • thefattomato

    @Penseivat: 😀 😀 😀 😀 😀

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