With its use criticised in cases like Grace Millane’s, criminology lecturer Dr Samantha Keene outlines the many reasons why the ‘rough sex’ defence is so problematic. 

Internationally, concerns are being raised about the increasing use of the “rough sex gone wrong” claim in courtroom defences to murder. Campaigners at We Can’t Consent To This point to 60 UK women killed by men who claimed the women were “consenting” parties to the violence. Previous trials demonstrate these claims are successful and can result in lesser charges, lighter sentences or, most recently, no prosecution at all.

The rough sex defence has been used in New Zealand, perhaps most famously in the trial of Grace Millane’s murderer. The Millane trial dominated news headlines both here and around the globe, with rough sex a key aspect of the case. Millane’s murderer claimed she had initiated rough sex, consented to it, and her subsequent death by strangulation was a tragic, unexpected and unforeseen accident.   

Rough sex was also a key question in a case against a Palmerston North man accused of rape and assault. In this case, whether “rape” or “consensual rough sex” had occurred was the key question in the trial. The man and woman had experimented with role-playing during sex and had a safe word. The defence focused on the fact the safe word was not verbalised, despite the woman reporting she was hit, choked and raped. The woman said she pleaded for him to stop and even vomited during the encounter. Despite these claims, the jury found he had reasonable grounds to believe she was consenting due to their prior history of engaging in rough sex. He was found not guilty of rape and assault several days later.

This week, the UK justice minister told MPs the “rough sex gone wrong” defence will be outlawed in new domestic abuse legislation. Due to become law later this year, the bill would make the rough sex defence inexcusable, and clarity around proposals for change will be provided in the coming weeks. In light of these changes, should New Zealand be following suit?

At the conclusion of the Millane trial, the officer in charge, Scott Beard, slammed the use of the rough sex defence and said it should not be able to be used in court. Some legal experts opposed such a position, claiming that because defendants are innocent until proven guilty they have the right to defend themselves in any way possible, regardless of the consequences of that defence. 

The rough sex defence is worrying for several reasons. The defence is a remarkably gendered one, as it is overwhelmingly used by men against women. When the rough sex defence is used as a defence to murder, the woman has no ability to respond and witnesses are not often present. This is not dissimilar to many sexual violence cases, which become characterised by “he said, she said” scenarios. In defence to murder, however, the only voice presented is his. The scenario simply becomes “he said” she consented.

The rough sex defence results in a range of negative consequences for victims and their families. It encourages discussions about women’s previous sexual histories, as in the trial of Grace Millane, which can ultimately work against them. If women have previously expressed their sexuality in a particular way, even with a different sexual partner, this can be used as evidence of her interest in particular types of sex and the likelihood she would have consented to such practices. 

The defence is a harrowing ordeal for victims and their families, with victims’ sexual histories laid out for the public to see. Introducing this evidence serves to make a suggestion about the type of woman the victim was, drawing on wider sexual double standards that see women shamed for their sexual conquests while men are heralded for theirs. 

Lastly, the rough sex defence relies on subjective understandings of what counts as rough sex, despite it being an ill-defined concept. Women’s magazines frequently state women enjoy rough sex and should try it to please themselves and their partners. Mainstream pornography may fuel this as it frequently eroticises aggression and rough sex, often depicted through behaviours such as “choking” and “spanking”. These acts are depicted as consensual and pleasurable in pornography and rough sex has become a sort of culturally acceptable, expected form of sex. However, we know little about how people understand it or where the line is drawn between “rough” and “violent” behaviours. Given New Zealand’s alarmingly high levels of violence against women generally, we need to know more about this phenomenon.

There are many issues with the rough sex defence and we should watch the changes in the UK closely. But we also need to take a step back and think about rough sex more critically. We need to know more about how it is understood, how different people define it, where the appeal comes from, and how consent is actively negotiated and communicated when it occurs. We know that when people consent to rough sex they are not consenting to murder, but what we don’t know is what “counts” as rough sex in the first place. 

Last night the new police commissioner, Andrew Coster, spoke at a vigil for George Floyd held at St Peter’s Church in Wellington.

The events of the past few weeks have given us all opportunity to reflect on our own community, on our own lives. As a father, as a police officer, I find the events that led to the death of George Floyd shocking. The complete absence of humanity or empathy in his treatment, and what that treatment symbolises, have rightly triggered an outcry in the United States and across the globe.

In this context, it’s right that we gather to reflect about our own situation in Aotearoa.

While I believe New Zealand’s style of policing is different to that we see in many other countries, we have to acknowledge that criminal justice outcomes for Māori in particular are appalling. This is not a situation that we should ever accept and I do not accept it.

It seems to me that if we’re to shift this problem we must first care enough to want to shift it. In this regard, it is hugely encouraging to see the strength of support for a dialogue about racial justice in New Zealand. Our ability to have this conversation in an open and mature way will, in my view, determine whether or not we are able to make a meaningful shift.

I believe it’s only by attempting to put ourselves in the shoes of others that we can hope to be able to respond appropriately. Whether it’s in the inhumane treatment of someone by a police officer, as we saw with George Floyd, racial tensions running within society, or the acceptance of extremely poor outcomes for sections of our community, the ability to see and understand each other as human beings will be the beginning of change.

In talking about culture to our people in police, one of my aspirations is that we should bring humanity to every interaction. This is about resisting the cynicism that can grow from always being presented with the hardest situations – we need to recognise that there is almost always a life course and circumstances that lead people to the places they are in when we deal with them.

We deal with people at the worst times of their lives, and we do that day in, day out. However, if we’re to be part of the solution, we need to maintain hope that people’s lives can change and we need to take the time to understand and respond appropriately to their circumstances.

In policing, and in criminal justice generally, we are frequently operating as the ambulance at the bottom of the cliff. We do not get to control who comes off the cliff. This is a function of a range of disadvantage, whether social, economic, health or education – and often a combination of all of the above.

In the incidents we are called to, whether reports of crime or disorder, mental health crises, or tension in families, our people must deal with what’s in front of them. Sadly, Māori are over-represented in many of the challenging situations that we send Police to resolve every day.

In that sense, the use of raw statistics to judge policing outcomes doesn’t fairly reflect the complexity of social problems to which we’re asked to respond. However, we can be part of the solution and we must make sure we are not part of the problem.

Fundamental in this is ensuring that there is fairness in the way we go about our mahi, whether in relation to prosecution decisions, use of force, and how we direct discretionary policing effort. These are areas that I believe we should test and I am committed to doing that in my five year term as police commissioner. That means being able to identify whether the way in which we’re making our decisions sees unexplained discrepancies between like situations, and where we do find these, finding ways to shift them.

It is my desire that New Zealand Police will be a leader in helping to improve the lives of New Zealanders who are not doing as well as the rest of us.

NZ Police has invested substantial effort over the last 10 to 20 years in building our cultural competence and growing our network of iwi liaison officers. Overall, we enjoy strong relationships with iwi, Pacific and ethnic communities and engage with well-established advisory boards to guide our thinking. We have developed new ways of working that emphasise solutions by Māori for Māori.

One of the strongest examples here is Te Pae Oranga, through which offenders for less serious offences may be diverted away from the formal criminal justice system to appear before an iwi panel and receive wrap around responses in a marae-based setting. This initiative has been evaluated very favourably with demonstrated positive impacts compared to the alternative of prosecution, and many Māori have benefitted from this approach.

We have also adopted very different ways of policing with community and iwi in efforts to build community resilience when dealing with difficult problems such as drug harm. One such example, Operation Notus, was particularly poignant because it occurred in cooperation with Tūhoe, an iwi that has experienced considerable injustice in previous encounters with policing.

On this occasion, having investigated substantial organised criminal activity impacting the community of Kawerau, police worked hand-in-hand with Tūhoe in planning the operation termination. This included seeking appropriate health-oriented responses for those suffering from drug addictions and, where tamariki were caught up in this, arranging iwi rather than state-led responses for those children. This joint working was very restorative of the relationship between New Zealand Police and Tūhoe, and is illustrative of the way we wish to work in future.

Similarly, Police has recently demonstrated its commitment to understanding and responding appropriately to the needs of Māori communities through the way we collaborated with iwi checkpoints established in response to the spread of Covid-19. We have also responded to the strong community feedback about the recently concluded armed response team trial and have restated our commitment to operating as a generally unarmed police service. These examples are clear indications of my commitment to leading an organisation that is tuned in and responsive to community needs and expectations.

I recognise that positive responsiveness initiatives by themselves are not enough to address racial injustice. We need to examine our attitudes and behaviours to ensure they embody fairness for all people.

New Zealand Police is a large organisation of 14,000 people, which is representative of much of the diversity that exists in New Zealand communities. I can say with absolute confidence that our people come to work to do an outstanding job for our communities, and they do so in the face of incredibly difficult situations that come across their path every day.

We will not always get it right, and where individuals are demonstrating attitudes or behaviours that do not align with our values, we will respond assertively. However, it is worth recognising that, for every less ideal situation that may make the media for some reason or other, there are thousands of other difficult situations and interactions that we have navigated and resolved with great professionalism.

I recognise too that it’s not just about individual behaviours or attitudes about which we need to be concerned. We need to examine the behaviours and practices of our organisation as a whole, to make sure that it is operating in ways that are fair and that promote equity for all people. Again, this is something that I’m committed to doing.

I would ask you for understanding as we work to support our people with the change that’s required. There is no easy quick fix here. There will be steps forward and steps back. When there is a step back, I welcome the opportunity to talk and work to resolution.

I’m very proud of the organisation I lead. Our people are genuinely committed to our vision that New Zealand should be the safest country. We are an increasingly diverse organisation that is aspirational for our country and what it can become. I welcome the public conversation about racial justice, including how we would like to police in the future. It’s only through dialogue that we can have a meeting of minds and achieve the change we wish to see.