Overcoming the "50 Shades of Grey" Defence

Trigger Warning: Contains mentions rape, assault and sexual violence

On Monday the 6th of July 2020, MPs voted in favour of including a new provision in the Domestic Abuse Bill preventing the use of the ‘rough sex defence’ in British courts. The long overdue act will eradicate the argument that consent for sexual gratification is an adequate defence for causing harm to another person. In particular, this amendment will protect victims of violence from being shamed for their sexuality in court.

Nicknamed the ’50 Shades of Grey Defence’, this defence strategy is enacted by defence lawyers to minimise the punishment against the defendant. This often results in the charge being reduced from murder to manslaughter, such as in the case of Carol Califano, Natalie Connelly, Laura Huteson, and so many other victims. Using this defence can result in a lighter punishment, shorter prison sentence, or even an acquittal. It has been increasingly used in the courts as a defence for sexual violence that ends in serious harm or murder, pinpointing the style of ‘consensual’ sex as the reason for the violence occurring, absolving the person who inflicted the violence from blame.

Usage of the defence is on the rise, potentially due to the more liberal attitudes towards BDSM in modern sexual culture. Films, music, literature, and television take a more liberal stance towards sex and its various subcultures, the obvious example of this being the rampant popularity of the 50 Shades of Grey phenomenon. Although the book and film saga has been widely rejected by those who actually practise true BDSM, as it paints it as harmful and unsafe in some instances, people associate this style of ‘rough’ sex to be fun and kinky without taking into consideration the communication and trust needed to engage in any sort of BDSM. One study conducted by the BBC found that 38% of UK women under 40-years-old have experienced unwanted slapping, spitting, choking, or gagging during consensual sex. This is equivalent to 3.6 million women in the UK.

Although the ‘sex game gone wrong’ defence has been rising in popularity, the earliest UK example of this defence being used was fifty years ago. In 1972, 28 year-old Carol Califano was murdered by her abusive partner whilst she was trying to leave him. She had a daughter of just 8 years old when he injected her with 5 different anaesthetics as a part of ‘erotic practises’ ‘at her request’ and took pornographic photographs of what could have been her last living moments as a part of these ‘practices’. Her death was reported as ‘perverted sex’ and a ‘sex play killing’, as her partner told the court of Califano’s ‘perverted sexual desires’ to blame the victim for his own act of violence against her. Califano’s murderer’s sentence was downgraded from first degree murder to manslaughter and the killer was only sentenced to 12 years in prison for murdering a woman.

The Connolly case caused a national outcry and fuelled the We Cannot Consent to This movement in 2016. Natalie Connolly was killed by her partner at their home in Worcestershire. She died of vaginal arterial bleeding and suffered 40 separate injuries including serious internal trauma, a fractured eye socket, and facial wounds. When her partner eventually called emergency services, after she was left to bleed out at the bottom of the stairs, he described her as “dead as a doughnut” to the responder on the phone. This man claimed it was a result of sex games “gone wrong”, was found guilty of manslaughter and sentenced to just three years and eight months in prison.

Louise Perry, founder and spokesperson of the We Can’t Consent To This advocacy group explained how this defence is still getting used: “killers are becoming increasingly aware of this [defence] – lawyers aren’t meant to propose it, but people are aware of it, and its potential success. Men have always murdered women; this is just a new way of getting rid of them.”

This defence is so popular, that those who commit these heinous acts of violence are aware of this somewhat ‘get out of jail free’ card. Grace Millane, a talented young woman and recent university graduate was killed by her date on the eve of her 22nd birthday. Her murderer did not seek medical help for Grace after he strangled her but instead went on another date with a different woman. He reportedly said to this woman that he had “heard of this guy who’s partner asked to have rough sex with him involving some sort of strangulation and suffocation but it went wrong and the guy couldn’t revive her and she died. He got done for manslaughter but it was really tough for him to see this woman he loved dying.” This was said just hours after he had stuffed Grace Millane into a suitcase and buried her in the woods.

When reviewing just 60 of the cases which used this defence, We Can’t Consent To This noted that 45 percent of these resulted in a lesser charge, lighter sentence, complete acquittal, or the case not being pursued at all. Nearly half of the defendants in question got away with murdering a woman by shaming her sexuality.

‘When people hear rough sex they think of BDSM: maybe some Ann summers fluffy handcuffs and they feel they can relate, but this is not that at all. We are seeing examples of horrific internal injuries in these cases. But it helps the perpetrators to frame the incident like this” explains Perry. In some cases, the defence used does not even kink-shame the victim, but just outright shames the fact they have sex.

The passing of the Rough Sex Act means that there is hope for women in the UK who are victims of extreme sexual violence. The optimistic way of thinking about this is that it is progress, a win for women, a move towards equality. Yet, we must remain realistic. Is it more likely that our society will find another way of blaming women for the violent acts committed against them?