Canadian courts test the “rough sex” defence

As seen in The Economist, August 1, 2020

In a trial in Canada later this year, one of the questions is whether Cindy Gladue liked rough sex. Specifically, if she liked it rough enough to consent to digital penetration that tore an 11cm wound in her vaginal wall. Ms Gladue bled to death, so she cannot testify. Bradley Barton, charged with her manslaughter, says her death was a tragic accident. Mr Barton’s case, a retrial, will be heard in November. The verdict in another case is expected on July 31st. David Miller is accused of first-degree murder of his girlfriend, Debra Novacluse, in 2016. He told police that her death was a result of rough sex gone too far.

The cases come as a group of academics have called for a restriction on the use of the “rough sex” defence in homicide cases.

Elizabeth Sheehy, Isabel Grant and Lise Gotell, who specialise in gender studies and the law surrounding violence against women, argue that the law shouldn’t recognise the consent of the victim as a defence for causing bodily harm or death. “Rough sex rebounds on women,” they say.

It is not just in Canada that the so-called “50 Shades of Grey” defence appears. Men in America, Britain, Germany, Italy and Russia have claimed that their partner’s death was a tragic, kinky accident. We Can’t Consent To This, a British campaign group, has counted 27 cases since 2010. The group recently celebrated the addition to a proposed domestic-abuse law of a clause barring the use of consent as a defence for bodily harm (although this principle was already established in common law).

It is unclear how often the defence is used in Canada. In March, Kalen Schlatter used it as part of his (unsuccessful) defence against the charge of murdering Tess Richey. Ms Sheehy, Ms Grant and Ms Gotell say it has become more common since 2015.

Angela Marie MacDougall, the director of Battered Women’s Support Services in Vancouver, says that since 2010 her organisation has heard more complaints from women that their partners have been violent during sex.

Canadian law says that a person cannot consent to bodily harm in the context of a fist fight. But punch-ups are not usually engaged in for pleasure. “The difficulty is that our Supreme Court [did not say whether] this same rule would apply in the context of sexual contact,” say Ms Grant and her colleagues. Some think harm during sex should be illegal regardless of consent.

But despite, or because of the risks, some people do like rough sex. bdsm, or bondage, domination, sadism and masochism, can feature acts that some people would find extreme. Some of these acts, such as asphyxiation, are dangerous. “It’s very debated in the community if it can ever be safe,” says Andrea Zanin, a Canadian writer who focuses on bdsm. Ms Zanin rejects any proposals to criminalise kinky sexual behaviour, especially the notion that a person can’t consent to harm. However, consent should be explicit, and can never be assumed. “You can’t say that because someone is involved in kink, [assaulting her] is okay,” she adds.

Still, when people engage in risky acts, accidents happen. Just ask any athlete. A person can be strangled into unconsciousness in 15 seconds. No one really knows how long death takes after that. Estimates range from 30 seconds to several minutes. There are no controlled experiments, for obvious reasons.

When evidence is heard in court, the verdict largely depends on whom juries believe. What jurors believe depends on what they find plausible. In recent years public awareness and acceptance of diverse sexual practices has increased. But male violence against women has not gone away.

The worry is that a murderer could deliberately make the crime look like “rough sex” gone wrong. Even if false, his story could be consistent with the physical evidence. A murder charge requires proving that someone intended to kill or seriously harm the victim. So much of the evidence hinges on accounts of intention and consent. “He said, she said” cases are notoriously tricky. In a concerning number of trials, it’s a case of he said, she’s dead.

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