# notes --- - [[{8.2} the rough sex defense is used to argue that a person should not be held legally responsible for a death that occurred during allegedly-consensual sexual activities]] - [[{8.2a} in rough sex defense cases, we question the victim's sexual history more than the defendant's]] - [[{8.2b} indiscriminate sex positivity is a tool of the patriarchy]] ## to read - Making Violence Sexy – Diana Russell # abstract --- In this article I consider the increasing use of the “rough sex” defence by men who kill women in trials of murder. In demonstrating the prevalence of this defence I examine the defence tactics of pleading accident and traducing the character of the dead by invoking the excuse that the deceased consented to the acts which contributed to her death. I examine the impact of this defence strategy on jury determination and return of convictions for unlawful manslaughter rather than murder. The notion that women in these situations have contributed to their own demise is a redolent oeuvre in pornography but also has roots in psychoanalysis and medicine. Stereotypes of women’s sexuality as defined by men continue to inform contemporary thinking skewing male violence against women as an outcome that women desire. Legal attempts to reform the law are examined and challenges to the representation of women in popular culture are called for. # summary --- The “rough sex” defense is often used in cases where a man admits to killing a woman, but argues that she was killed accidentally during sexual activities to which she consented. It’s becoming increasingly common. Although it’s most often used in cases of strangulation, it’s also been seen in cases where a woman has died as the result of blunt force trauma or other bodily injuries. A cornerstone of the rough sex defense is the same common refrain in cases of rape: She wanted it. But did she? Do we? Narratives about female sexuality have long been defined and pathologized by psychologists and medical practitioners, and these narratives have long been controlled by men. The language surrounding “consensual” sexual violence is also often defined by men; terms like “rough sex”, “rape **play**”, and “sex **games**” neutralize the harm being done and exonerate violent men. > The language of the perpetrator redefines his brutality and sadism as “sex”, not violence, and as “rough”, not brutal. As Duberman with reference to Dworkin writes “the idea that women like to be hurt are male assumptions about women’s lives”… Strangulation is an especially gendered method of killing. In a review of intimate partner homicides in England and Wales over a period of 42 years, strangulation, choking, asphyxiation, or suffocation was the manner of death in an average of 26.5% of cases. In trials where the rough sex defense is used, whether the *accused* has a propensity for strangulation tends to be overlooked in favor of dissecting the victim’s “sexual character”. In other words, the court asks whether the deceased wanted to be choked, rather than whether the accused wanted to choke her. Interestingly, it seems like such assertions cannot be made in cases where the charge is explicitly sexual violence, but there are no such safeguards in place when the charge is not directly linked to sex (e.g, when the charge is murder instead of rape). [[2024-10-19]] — why don’t we ask men why they want to strangle women? make them articulate that they’re aroused by violence against women Edwards breaks down several cases where the rough sex defense was used. In some cases, the defense was successful in exonerating the defendant or allowing them to plead to a lesser charge; in other cases, the defense was not successful. There doesn’t seem to be any specific trend in terms of *when* this defense works and, while it’s often used in cases of choking, it’s also used in cases where women have been beaten or experienced other severe bodily trauma. In one English case, for example, a woman died from acute alcohol intoxication and 40 separate physical injuries including bruising to her head, a fractured eye socket, internal bleeding, and vaginal hemorrhaging; the man on trial for her murder allegedly knew she was bleeding profusely at the bottom of a set of stairs, but did not seek medical attention. He was able to plead to Gross Negligence Manslaughter, despite knowingly and, in my opinion, intentionally causing serious harm to the victim for the purpose of sexual gratification. Although, his defense, of course, was that it was for *her* sexual gratification. Not his. Edwards argues that at least three areas need “immediate reform”: >First, there is a need to criminalize NFS because of its lethality potential; second, to exclude or at least limit the “rough sex” arguments; and third, to contest and challenge the increasing sex stereotyping and sexualization of violence against women in popular cultural representation. Two especially important things to note about the rough sex defense specifically: First, this is gendered; “no man has died from ‘rough sex’ committed by a woman and no woman who has been charged with killing an intimate male partner has relied on ‘rough sex’ as a defense’”. Second, something I find extremely telling, is that while experts have been called to address women’s interest in sexual violent or to speak on the likelihood of a homicide occurring as part of “rough sex”, *no expert* has been called in the cases discussed “to address… male violence, control and force, male sadism, or misogyny.” # highlights --- > For some, sexual violence against women is defended as an expression of sexual liberalism. >During the nineteenth century the view that women enjoy sexual violence was echoed in medical, psychological and the newly emerging psychoanalytical literature. >…medical jurisprudists contended that rape could only be proven if there were signs of violence on the victim, especially on the genitals… ^ Anecdotally, I remember this from an episode of *CSI* or *Law & Order: SVU*. >Susan Brownmiller ([Reference Brownmiller1975](#ref14)) coined the term “rape culture” to describe the ready acceptance of myths about women and rape – that women invented the allegation, that they asked to be raped, that they desired rape which allowed men to use violence with impunity to terrorize, to control and to dominate. >Brownmiller ([Reference Brownmiller1975](#ref14)) details the systematic raping of women in peace and in every war ever fought, from the First World War, the Second World War, to the raping of Vietnamese women by American soldiers, the rape of Bengali women by Pakistani soldiers, the rape of Jewish women in the Warsaw ghetto, and the rape of women in Borodayevska, in Berezovska, Smolensk, Lvov and Borrosov. “This mass rape was routinely dismissed as little more than what happens in war like ‘collateral damage’, an expected and natural even if unintended consequence. >When interviewed for _Omnibus_ in 1991 in describing the central motif of pornographic representation she said, “it doesn’t matter what you do to a woman, she will like it” (Dworkin [Reference Dworkin1991](#ref26) 5:23). ==Not only in pornography, but also outside it, sexual violence and women’s pleasure in sexual violence have been the central defining motif of women which has served to exonerate men’s conduct and camouflage male brutality and violence.== ==Acts of sexual violence have been defined from a male point of view and the language has neutralized the harm to her.== The terms used by men – “rough sex”, “rape **play**” and “sex **games**” – have been colonized by them, exonerating and neutralizing their responsibility for acts of sexual violence and murder, becoming ==**stylized vocabularies of motive**== (see Taylor’s earlier work on vocabularies of motive in Taylor [Reference Taylor1972](#ref80)). >==…a male-dominated society produces a pornography of universal female acquiescence.== > The prevalence of the gendered specificity of strangulation, choking, suffocation and asphyxiation as a killing method in intimate partner homicide of females in England and Wales has been charted by Edwards since the 1980s, finding that such was the killing method in an average of 26.5% of cases over a 42-year period, demonstrating that strangulation is a red flag with a high lethality potential (Edwards and Douglas [Reference Edwards and Douglas2021](#ref32):89). >Yardley’s ([Reference Yardley2021](#ref86):1841) research, which tracked cases reported in newspapers and case law data, found that in a sample of 1,611 cases, between March 2001 and March 2019 where female intimate partners had died, “rough sex” was introduced in 43 cases as part of the defence to a charge of murder. With reference to my own research, strangulation and asphyxiation are more preponderant as a cause of death in the so-called “rough sex” cases. However, there are additional cases where laceration to the vagina and beatings claimed by the defendant to be initiated or consented to by the victim have resulted in death… >==It is to be noted that it is only men who have been charged and convicted of “rough sex” homicide against women and that no man has died from “rough sex” committed by a woman and no woman who has been charged with killing an intimate male partner has relied on “rough sex” as a defence.== >Misogyny narratives frame women in a way that excuses male violence. >The language of the perpetrator redefines his brutality and sadism as “sex”, not violence, and as “rough”, not brutal. As Duberman with reference to Dworkin writes “the idea that women like to be hurt are male assumptions about women’s lives” (Duberman [Reference Duberman2020](#ref24):135). ^f41a36 >These two words “rough sex” should be resisted, just as “child pornography”, in hiding the reality of child abuse, was resisted for the oxymoron it is. >In trials of homicide, the accused’s propensity to strangle is frequently camouflaged by defence accusations of the deceased’s sexual character which are impossible to refute as the dead cannot speak. >[!reaction]- reaction >Yes, this seems true even in more casual spaces, especially online; it’s difficult to talk about a man’s preoccupation with strangling / sexual violence, because it’s hand-waved as a response to *women liking* this sexual violence — regardless of whether or not that’s a fair representation. >Whilst the so-called “rape shield” restriction on admissibility of character evidence of the complainant operates in cases where charges are brought under sexual offences legislation… where charges are of violent assault or death no similar shield operates, thus allowing defendants to adduce evidence that the complainant had previously engaged in “rough sex” or that her sexual preference indicates that she enjoyed it. >[!reaction]- reaction >I think what this is saying is that, in cases where “sexual assault” (or something similar) is the crime, you typically can’t bring up the victim’s sexual history. This isn’t the case where the charge is *murder*, that information *can* be presented to a jury. Why? >…men are not only raping and terrorizing sexual partners, but killing them and claiming that death is an accident and that she consented to the violence and initiated it. >…the “rough sex” defence has become a global male excuse for violent and lethal assault on women. > Whilst strangulation/suffocation/choking and gagging characterize the sexual homicide cases where “rough sex” is alleged by the defence, “rough sex” has also been alleged in cases where women are beaten to death and violently sexually assaulted. >First, there is a need to criminalize [nonfatal strangulation] because of its lethality potential; second, to exclude or at least limit the “rough sex” arguments; and third, to contest and challenge the increasing sex stereotyping and sexualization of violence against women in popular cultural representation. The latter two proposals are subject to fair trial and freedom of speech objections. >[!reaction]- reaction >There are some interesting points to consider re: criminalizing NFS. On the one hand, I wonder if it would potentially fall under privacy laws in the U.S; despite my own feelings, there *are* people who consent to asphyxiation-related activities. At the same time, apparently all but six states [as of 2018]([States Start to See Non-Fatal Strangulation as Felony | MedPage Today](https://www.medpagetoday.com/meetingcoverage/aapl/75974)) have made strangulation a felony, which *then* makes me wonder — were they *not* prosecuting DV perpetrators for strangulation before?? >For example, in the Australian Capital Territory in the case of _R v. Green (No 3)_ [Footnote 26 ](#fn26) the judge ruled that “the relevant element is constituted by the stopping of the breath”. The fact that she felt dizzy was not sufficient. >[!reaction]- reaction >LMFAO, this sounds very familiar to other stalking and DV cases. The authorities seem unwilling to help you unless you are in immediate, life-threatening danger — in other words, when it’s usually too late. > >[Here]([R v AJB [2019] QDC 169 (sclqld.org.au)](https://archive.sclqld.org.au/qjudgment/2019/QDC19-169.pdf)) is the ruling on the case mentioned. The defendant here was actually a woman. She was charged with “a count of assault occasioning bodily harm” and “a count of choking in a domestic setting” against her daughter and her daughter’s partner. When determining whether she should be found guilty for choking, it seems like the court decided that it wasn’t *technically choking* — “The consistent theme in the terms ‘choke’, ‘suffocate’, and ‘strangle’ involve a stopping of breath, not a restriction in the ability to breathe.” > >I didn’t read the entire ruling, but it feels so reminiscent to the idea that certain types of assault aren’t “bad enough” to warrant protection for the victim or punishment for the perpetrator. > It is to be noted that ==no expert has been called in any of these cases to address the jury on male violence, control and force, male sadism or misogyny==.