A recent international murder case highlights the dangers of this “opportunistic” defense strategy, highlighting a continued need for the justice system to better understand gender-based violence.
By Dr Pani Farvid – 8 December 2019
Just over a year ago, a 22-year-old British traveler named Grace Millane, was found dead in New Zealand – her contorted body buried in a suitcase west of Auckland. This sparked a homicide investigation that revealed she had been on a date that evening with a young man she’d met on Tinder. Her date, who controversially still has name suppression, was finally charged with her murder about three weeks ago.
During the trial, the defense lawyers sought to use a “rough sex” defense – the claim that the victim consented to violent sex, which ultimately and accidentally led to her death. They argued the death was accidental due to “a toxic combination of alcohol, inexperience with BDSM practices, and sexual passion going too far.”
As a psychologist who specializes in the intersection of gender, sexuality, power, ethics and technologically mediated sexual trends (including dating apps and online pornography) – this defense strategy was alarming. The facts of the case clearly indicated that the man had killed Ms Millane and that the rough sex was an “opportunistic” defense strategy in order to pursue acquittal (however unlikely) or a lighter sentence.
As the prosecutors argued “You can’t consent to your own murder” and that “This isn’t a little bit of sex gone wrong … because the person doing that must have known that they were hurting her, causing her harm, that might well cause her death, but they were reckless and carried on, and she died.” And reports of the man’s behavior before and after the murder support these claims.
Yet, not surprisingly, the case became more about Millane's sexual history, and the dangers of dating apps rather than the facts of the evening in question, or the gendered- power relations when it comes to violence against women. For example, the court was told that Millane had an interest in BDSM, with a previous sexual partner testifying they had used safe words and physical tapping to indicate when physical pressure became too much.
Indeed, research indicates that rough sex rarely correlates with violence or death, typically leading to “only superficial injuries such as scratches, bruises, and welts”. There is something else going on when a woman is injured or killed.
The rough sex defense is not new. There are cases as far back as the 1960s and 1980s with a high profile cases in the US, UK and Canada. The Millane case however, comes at the end of a series of recent trials which made claims of “sex games gone wrong” – with some of these cases, seeing shockingly light sentences have been dished out to men who have clearly violently killed their girlfriends during sex. As a response to the this, Fiona Mackenzie (a British activist), set up 'We Can’t Consent to This' to raise awareness about the normalization of violence against women during sex – something that is supported by research.
So, what is going on here? For decades campaigners have worked tirelessly to curb the sexism, double-standard and victim-blaming that plague rape, assault and murder cases (where men have been the perpetrators and women the victims). It seems that the “rough sex defense” is a new sexist and victim-blaming defense strategy to add to the list.
The modern world of dating and heterosexual relationships cannot be extracted from a social and cultural context that still supports gendered forms of sexuality that provide the “scaffolding” for rape and violence against women. It’s not the details of what a woman was wearing, if she likes rough sex, or if she was brazen enough to use dating apps while in a foreign country. None of these are the issue. The issue is that women are by and large not safe from men’s violence, especially if they are heterosexual and dating, or in relationships with men. And when they are harmed by men, gendered power relations, create a context where the women, technology or sexual mores take center stage, rather than the issue of gender-based violence. As one senior rape scholar and expert in New Zealand has noted, the defense lawyers in the Millane case sought to “craft an argument that was heavy on the myth of egalitarian sexual adventure and light on the reality of gendered power” that still heavily contours heterosexuality.
A clip of the pathologist's testimony also makes for compelling viewing. The defense attorney asks about the possibility that the deep bruise on Millane’s neck could be as a result of consensual sexual activities. Dr Stables is not only caught off-guard but rebuts with a slightly dark and dry wit: “a consensual bruise?”. Yet, persistent questioning from the defense lawyer has him concede that he cannot rule it out – even though it is unlikely.
This brings into the spotlight the role of defense lawyers and the justice system. To what extent can we continue to have cases involving gender-based violence be dealt with by individuals that do not seem to understand it? We have known for some time that non-fatal strangulation by a man is the biggest indicator of the future homicide of women. It is also extremely effective form of intimidation, coercion and control, demonstrating a man’s capacity to kill. This is why Australia, New Zealand, Canada and most US states have preventative legislation to strengthen police, prosecutorial and sentencing policies that surround it – in most US states it is now compulsory for police to charge strangulation assaults as felonies.
Yet, strangulation is not only routinely minimized in the media and in court cases, it is often explained away; by arguing someone momentarily lost control, that it was sexual rough-housing, or a lover’s quarrel gone too far. Such arguments not only fail to capture the social reality of gender-based violence, but the physical realities of successful strangulation.
Physically, it is quite difficult to strangle a person to death, especially by accident. You not only need will and substantial physical force, but a considerable amount of time to successfully kill someone via strangulation. Unlike choking, where air supply is cut off to the brain, during strangulation both blood supply and air supply to the brain is cut off.
It is fairly difficult to cause a fatality by strangulation just using hands – one would have to apply quite a lot of force over several minutes. That length of time depends on the strength of the individual, the size of the victim and if any tools are used. Overall – a victim will be unconscious in about two minutes of applied force, five minutes means permanent brain damage may occur and ten minutes means that the victim would be brain dead even upon immediate resuscitation.
It would seem that the rough sex defense is nothing but a contemporary and opportunistic escape goat to minimize, excuse, or exonerate violent and homicidal behavior towards women. It is a blatant form of sexist victim-blaming that has reared its ugly head, again, at a time where sexual mores are shifting and heavily mediated by technology.
The women of yesterday who were blamed for their own rapes because of their attire or drinking behavior, is replaced by the women of today who dare to go on a Tinder date, with a stranger, while on holiday. There is a sentiment or element of – she asked for it by engaging in risky behavior. But in reality – victims can never consent to their own deaths.
In this post #MeToo era we need to campaign against the return of the “rough defense” defense, removing it as an appropriate defense strategy and unveiling it as the victim-blaming farce that it really is.
Author bio: Dr Farvid is an Assistant Professor of Applied Psychology at The New School, where she leads The SexTech Lab, conducting research at the intersection of gender, sexuality, technology, ethics and power. Her work seeks to foster social justice in the intimate, social and systemic domains of relationships.