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Can a woman ever consent to her own murder? Expert comment on the Grace Millane verdict

Dr Laura Lammasniemi, Assistant Professor in Warwick Law School, comments on the increasing frequency of attempts to claim "rough sex gone wrong" as a defence in murder trials.

"Following a high profile trial, a man has been convicted for the murder of British national, Grace Millane, in New Zealand. During the trial, the defendant attempted to introduce ‘rough sex’ or ‘sex game gone wrong’ as a defence. Efforts to raise this as a defence have recently occurred in several similar prosecutions in the UK. These cases, and their increasing frequency, are very troublesome from a legal perspective.

"The legal precedent is clear that one cannot consent to harm and injury for sexual gratification, and in the words of the prosecutor in the Millane case 'You can't consent to your murder'. Yet, in recent years there has been series of cases where men have killed their sexual partners and attempted to use the partner’s consent as a defence, arguing that the death was caused by a ‘sex game gone wrong’. The most high profile of these cases in England is that of John Broadhurst who just last week lost his appeal to reduce his 3 year 8 month sentence for the manslaughter of his girlfriend, Natalie Connolly. Connolly died due to catastrophic injuries Broadhurst had inflicted on her, yet, he was convicted for failing to call assistance as she was dying but not for the injuries that he claimed were consensual.

"These cases are legally problematic. While a person’s right to sexual autonomy and consensual sexual practices, whatever those practices might be, should be respected, the law does not allow for consent to be used as a defence. Allowing discussion on consent in these cases, introduces victim’s sexual history where it is not relevant to proceedings and can prejudice the jury against the victim. It also shifts the focus of media coverage from the defendant to the victim, feeding into wider patterns of victim-blaming. Kempson’s conviction for murder sends out a message that such defence will not succeed in New Zealand. Whether English courts will follow and put an end to these attempts introduce discussion on consent to a ‘sex game gone wrong’ to juries, remains to be seen.

22 November 2019

Sheila Kiggins

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