‘Rough sex,’ strangulation and the ‘inviolable’ defence of consent

This chapter reviews the provisions of the Domestic Abuse Act DAA 2021 criminalising non-fatal strangulation and suffocation (NFS) and the so called ‘rough sex’ defence. The NFS provision under the Serious Crime Act SCA 2015, section 75A, recognises the harm of strangulation and suffocation and its prevalence as a strategy of coercive control in intimate partner relationships. The ‘rough sex’ provision places on a statutory footing (DAA section 71(2)) an earlier decision of the House of Lords in R v Brown (1994) 1 AC 212, which held that consent could not be a defence to serious violence where the act done constituted more than a minor assault (Criminal Justice Act CJA 1988 section 39). This chapter examines the cases which galvanised legal change establishing these new offences and lays out the specifics of the law. It goes on to detail NFS and rough sex as framed by the legal narratives followed by a consideration of rough sex as sexual violence. The chapter then provides an overview of ‘consent’. Despite the vociferous campaign by ‘We can’t Consent to This’ and the Centre for Women’s Justice among others, the legislators saw fit to allow a defence of consent under limited circumstances in both the NFS and rough sex provisions. Academics and campaigners remain concerned about the continuing opportunity for a defence of consent, albeit in limited circumstances, in both these offences. As consent is constructed within a wider political and social context, gendered stereotypes continue to misinform judgements about male and female conduct outside and within the courtroom. It is these misogynist stereotypes that have given way to the preservation of a consent defence. The chapter concludes with the sentencing provisions in these offences and challenges to current law.