What is going on when the rough sex ‘defence’ is deployed in criminal cases?
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Debates about the rightful legal status of sadomasochism abound with calls for its decriminalisation and the protection of sexual minority rights on the one hand and calls for its continued criminalisation for the protection of women on the other
Cases where rough sex or BDSM have come to court are analysed to examine how consent, BDSM and a more permissive approach to sexual practice and sex positivity are expressed in court
Consent, BDSM and sex positivity are spectacularised in these cases and used to excuse men, and demonise women
Transforming contemporary attitudes to consent will help to nurture a more social, sexually just way to encounter rough sex in court
Over the past twenty years there has been an increase in the number of cases where women have been killed or injured by men during a sexual encounter and where the perpetrators have claimed that what occurred was consensual rough sex. Colloquially, this has become known – in media and political discourses most notably – as the-‘rough sex defence’. Claiming rough sexual practice was consented to can work to reduce a charge of murder to manslaughter, one of manslaughter to accidental death and to mitigate sentencing when perpetrators are found guilty. This occurs against a legal background in the jurisdiction of England and Wales where, in law, it is impossible to consent to sexual violence which is more than transient or trifling and where much sexual practice that might be called bondage and sadomasochism (BDSM) is criminalised.
In this book, Alexandra Fanghanel interrogates this tension by examining what is going on when a defence that rough sex occurred consensually is raised. Analysing the text of court transcripts where such cases have arisen, the author scrutinise the discourses, assumptions and forms of knowledge that are mobilised when making these claims.
Rough sex ‘defences’ and the politics of BDSM have received increasing attention in socio-legal studies over the past few decades with increasing scholarship devoted to this field. At the same time, there is a considerable amount of ambiguity when it comes to understanding how these cases are treated in a socio-legal context. This book offers readers unparalleled insight into how cases like these play out in practice. It intervenes in contemporary socio-legal discourses about gender, sexuality, deviance and desire. It tells us more about what is taken for granted, what is assumed and what is overlooked in how consent is discerned and operationalised in these cases against a background of contemporary rape culture.
