Around this time last year, 21-year-old British backpacker Grace Millane had arrived in New Zealand on the second leg of her round-the-world trip.
She checked into a hostel, browsed a dating app and arranged to meet a man that night in central Auckland.
During the date she was captured on CCTV in various city nightspots, drinking and kissing with a man about whom she messaged her friends: “I clicked with him so well.”
They returned to his hotel where they had sex. So far, so unremarkable.
But the night turned tragic, when, probably in the early hours of her 22nd birthday, Millane was killed. Her date, whose identity remains legally suppressed by the New Zealand courts, told jurors Millane’s death had occurred accidentally after consensual “rough sex”.
On Friday, he was found guilty of strangling Millane to death, after a three-week-long trial.
A pathologist told the jury of seven women and five men that the gap year student had died from “pressure to the neck”.
Records showed that after the event, he had searched online for “the hottest fire”, “large bags near me” and “Waitakere Ranges” – where Millane’s body was later found contorted inside a suitcase on December 9, 2018 – before going on another Tinder date that day.
Throughout the trial many feminists and campaigners repeated concerns about the use of the “rough sex” defence in murder and manslaughter trials, saying it is nothing more than a euphemism for male violence against women.
Others say this is a misrepresentation of the BDSM (bondage, discipline, sadism and masochism) community, whose practices are underpinned by safety and consent.
But is it ever acceptable to use it as a legal defence against killing or injuring someone?
Campaigning group We Can’t Consent To This has published details of 59 British women killed by men who claimed their deaths were as a result of violent – but consensual – sex.
45% of the time, this claim in a homicide defence results in a lesser charge of manslaughter, a lighter sentence, or the death not being treated as a crime at all.— We Can't Consent To This (@Wecantconsentto) November 21, 2019
And in the last 5 years, it's worse, with 50% success in "sex game" claims:https://t.co/a1uxx35fsE pic.twitter.com/OO5ol3NMHK
Its findings state that, in the last five years, half of “rough sex” claims in homicides of women have resulted in a lesser charge like manslaughter, no conviction, or the death not being treated like a crime at all. It also points to figures showing 20 British women and girls have been killed by men who claim they “consented” to the violence, with 18 reaching trial and nine of those being found guilty of murder.
Karen Ingala-Smith, whose work was the inspiration for We Can’t Consent To This and is chief executive of domestic violence charity Nia, told HuffPost UK: “Women don’t die from rough sex. Women die because men are violent to them.”
Ingala-Smith, who also founded the Counting Dead Women campaign, believes the “rough sex” defence appears to be partly a consequence of a rise in access to pornography online, and is at the same time driving an increase in demand for increasingly violent and degrading porn.
She continued: “And men are expecting to take that to the bedroom with women they’re having sex with. I think women are pressured whether they’re conscious of it or not to accept violence during sex and do things that weren’t commonplace 10 or 20 years ago.
“Women and girls and young people are socialised to see this as normal and what you do to be good in bed. I don’t think it is the same as what we’d freely accept if we weren’t socialised into a pornographically-steeped culture.”
But members of BDSM communities have found the case deeply disturbing for further reasons – particularly that they feel the defence is demonising a practice they say is historically anchored by the issues of consent and safety.
Rebecca Reid, the digital editor of Grazia, has been open about her experiences on Twitter, writing: “As a long time member of the BDSM community, seeing the words ‘kink’ and ‘BDSM’ connected with the murder of women makes me so angry. These women were not killed because they liked kinky sex. Liking kinky sex doesn’t mean you deserve this. That’s not kink. That’s abuse.”
The kink community is obsessed with consent, education, taking care and looking after the people you play with.— Rebecca Reid (@RebeccaCNReid) November 19, 2019
Upon the verdict, she told HuffPost UK: “There’s no triumph in his being found guilty. A young woman is still dead. While I’m glad that her sexual proclivities were not used as a justification for her death, there is still a huge body of reporting from all over the world which found her just as guilty as him on the basis of her sex life. I hope that this brings a modicum of peace to her family, but that’s the best I can see the verdict achieving for anyone.”
Dr Christine Campbell, a senior lecturer in psychology at St Mary’s University in Twickenham, studies the stigmas associated with non-traditional sexual relationships.
She said: “People in the kink community are highly stigmatised and public perceptions of BDSM practitioners are of them as being violent and abusive –but of course in BDSM communities that’s absolutely the opposite of how practitioners would generally, not always, aim to operate.”
Dr Campbell cites Risk Aware Consensual Kink (RACK) and SSC (Safe, Sane, Consensual) as being the more widely understood community guidelines by which kink practitioners act.
It entails being aware of risk, but for both models consent is absolutely key, she says. There are no legal distinctions between kink, rough sex and BDSM, and kink is not a protected characteristic under British equality law.
She said: “If anything, I would say BDSM practitioners have thought about ideas of consent more than any other section of society. If somebody dies as a result of reckless driving, do we talk about how dangerous it is to be a pedestrian?”
Earlier this month, a multi-millionaire who left his injured and bleeding partner to die after what was alleged to be consensual “rough sex” failed in his attempt to appeal his sentence.
John Broadhurst was jailed for three years and eight months after admitting the manslaughter by gross negligence of his partner Natalie Connolly.
A trial was told Broadhurst dialled 999 from his then home in Stourbridge, informing the operator he had awoken from a drugs and alcohol fuelled binge to find her “dead as a doughnut” at the bottom of the stairs.
Connolly, aged 26, was pronounced dead at the scene by a paramedic on the morning of December 18 2016.
A post-mortem examination showed the mother-of-one had suffered more than 40 separate injuries, including a “blow-out” fracture to her left eye and serious internal trauma.
Referring to that case, Dr Campbell said: “When you look at these cases in detail, and I always think the devil is in the detail, these people were not practicing BDSM. They were having sex under the influence of drugs and alcohol, which is almost always a big no-no in a BDSM situation – most people will not mix the two.
"Some people do, again, with an awareness of the risks, but if you look at that case, the issue was that Natalie was left at the bottom of the staircase, whereas when you look at how people practice BDSM in their day-to-day lives, you almost always see some form of aftercare – it’s just standard. And if aftercare isn’t happening, then I would say that automatically, that’s not a BDSM theme in that case.”
Ben, who is actively involved in the kink scene and works as a dungeon monitor at various BDSM clubs agrees. He has asked us not to publish his surname.
In kink spaces he will monitor play scenes for intoxication and active consent and risk assess the technical competency of participants. He keeps a basic first-aid kit close to hand, along with a pair of safety shears and some water.
In personal play as a “dom” or a “top” with men, women and non-binary people, he will ask about their boundaries and intimate contact, establish safety practices, such as verbal signals like “red, yellow, green” for levels of comfort, or a physical movement like raising a hand or dropping a held object if there is a problem. He will also discuss any medical issues and any known triggers to avoid.
He told HuffPost UK: “Ever since stepping into the scene 12 years ago and then becoming involved with events, I have never been exposed to any kink-based fatalities. All the unwanted physical injuries I’ve witnessed have been accidental, and the vast majority are minor and can be put down to equipment misuse or general clumsiness.
“I avoid playing with overly intoxicated people due to the heightened risk of miscommunication and diminished control.
“I do not recognise what’s been presented in these cases as BDSM as I practice it. I do not continue if someone should become unresponsive or unconscious, I do not continue if someone is in distress. I certainly don’t take it as a sign to increase the amount of force applied. To do anything otherwise is neglectful, non-consensual and highly dangerous. This has no place in my definition of BDSM – it’s just outright abuse of another human being.”
He added: “I feel that BDSM should be about sharing an act of informed, freely given consent, regardless of how hard you play. Abuse is the absence of that consent, and if needed, there are professional, freely available support groups to fall back on and seek guidance.”
During the Millane trial, the victim was described as being “naive and trusting” by an unidentified man whom she gave a list of her fetishes on a BDSM dating website.
But a former boyfriend of the Lincoln University graduate submitted testimony saying she was experienced around issues of consent and safety when practising BDSM.
He confirmed she had a presence on BDSM dating sites and had allowed him to choke her during sex.
In a statement read out in court, he said they had used a system of safe words and tapping signals to make sure she was never in danger, or if she wanted asphyxiation to stop.
He said: “Grace would be sure to do this and I trusted that any time it was too much for Grace she would do this. Grace and I were careful to discuss not only the physical but the psychological aspects to practising BDSM.”
Dr Campbell explains: “If Grace was using tapping as a safe signal, she wasn’t that naive. That’s all you need to do. Some people tap, some people make ‘uh-uh’ noises, a really good safety signal is to hold something – because as soon as you lose consciousness, that will fall from your grasp.
“If she’d had a partner before and they’d talked about safe words or signals, then that absolutely would have formed part of her play – I cannot see how it wouldn’t have done.”
The topic becomes most thorny on how to determine consent to risky activities at all – particularly when many believe the “rough sex” defence is quite simply allowing some men to get away with murder.
Former Labour leader Harriet Harman insists courts should no longer accept the “rough sex” defence at all as an excuse for death or serious injury.
Blogging for HuffPost UK alongside MP Mark Garnier in July, Harman said: “Men are now getting away with murder, literally, by using the ‘rough sex’ defence. What an irony that the narrative of women’s sexual empowerment is being used by men who inflict fatal injuries.
Referring to the Broadhurst and Connolly case, the Camberwell and Peckham MP said: “This is truly the ‘50 Shades of Grey’ defence. Men are using the narrative of women’s sexual enjoyment of being injured by violence to escape murder charges and face only manslaughter charges. Instead of life imprisonment they are out of prison in just a few years.
“Though he might admit he caused injuries which led to her death, he claims it was not his fault as it was part of a ‘sex game gone wrong’. She, of course, is not there to say otherwise. So, he gets into the witness box and gives lurid, unchallengeable accounts of her addiction to violent sex and explains that the bruises that cover her body were what she wanted.
“The grieving relatives see him charged not with murder but only manslaughter. And they not only have to listen to him traducing her reputation in court, they have to see his description of her sexual proclivities splashed all over social media and in the newspapers. She’s dead so he gets to tell the story of how he was only doing what she wanted.”
Harman’s request to the attorney general to review Broadhurst’s sentence, which was backed by campaign groups and members of the public, was declined this year.
Harman is proposing two changes to the Domestic Abuse Bill, which is currently moving through parliament; one where, in cases of death or serious injury, the defendant could not claim the victim consented; and in the second to make the decision to use a charge less than murder (such as manslaughter) in domestic homicide cases sit with the director of public prosecutions.
The House of Lords ruled in the 1994 case of R v Brown that, if the injuries were serious, a defendant could not a claim a defence that the victim consented. Harman is demanding this becomes statute and is added to the Bill.
On average two women every week are killed by their former or current partner across England and Wales.
The number of domestic violence killings has hit a five-year high, according to figures that emerged last month.
Obscenity and sexual freedoms lawyer Myles Jackman points out that one can only consent to bodily harm under British law if the injuries sustained are deemed “transient and trifling”.
Theoretically, this could render many BDSM practices illegal, but that interpretation is muddied by the implications for, say, boxers, who regularly put themselves in situations exposing themselves to bodily harm.
Like Dr Campbell, Jackman has found the Millane case troubling in part due to what he believes are misunderstandings around the area of consent, which can lead to victim-blaming and even criminalising women for their sexual desires.
Unlike Harman, Jackman says that, as a “fact-specific defence”, the claim that someone died during or following “rough sex” should be put to a jury to determine intent. But he adds that, worryingly, much of the surrounding narrative appears to be demonising women for engaging with such practices at all.
He says removing the “rough sex” defence altogether could have the consequence of removing women’s agency to consent to violent sex.
Jackman is concerned that the narrative around the normalisation of violence against women in sex is directly at odds with consent.
He said: “It seems that women’s deaths are being used in a very cynical way to say that a certain type of sexual activity cannot be consented to.
“The message seems to be not to engage with those practices. That is sending out a very dangerous message about women’s sexual consent, agency and autonomy.
“To instruct people not to engage in these activities at all – that equally cannot be right.
“Promulgating the ‘rough sex’ removal from the Domestic Abuse Bill will bring a lot of problems, particularly in distinguishing between consensual, adult BDSM relationships and abusive relationships. It may not seem initially difficult, but I suspect it is going to cause issues.”
Dr Campbell also finds the matter problematic, saying: “There’s a brand of feminism that says any situation where particularly females are being submitted to males is inherently non-feminist.
“I’m just not buying that at all.”
But Ingala-Smith remains unequivocal: “They are eroticising abuse. It’s abuse. I’m not going to defend kink culture – my concern is the women whose lives are being taken.
“I think we’re separating sexual violence from violence, but violence that happens during sex is still violence. I think we’re talking about one thing when what is happening is something else and we’re all being duped if we accept this.
“Many of the women who were by killed by men who used this defence successfully have had horrific injuries. That’s not rough sex – that’s violence. How do we know they’ve consented to that? How do we know they’ve consented to that? We don’t and I don’t believe they have.”
And addressing Millane’s parents, she added: “I am so sorry that your daughter’s life was taken by this man and that he and his legal team have added the insult of suggesting that she was complicit in this. But at least he’ll be in prison and kept away from other women.”
This article originally appeared on HuffPost.