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If you find this confusing given that both govt & campaigners are insisting they've "ended" the "rough sex defence", here's a short thread on what's actually happened.
In essence, people misunderstood what the existing law was, and what was going wrong in murder cases (1/?) https://twitter.com/EllieCumbo/status/1295991020052713472
In essence, people misunderstood what the existing law was, and what was going wrong in murder cases (1/?) https://twitter.com/EllieCumbo/status/1295991020052713472
It *WASN'T* that women were being held to have consented to their own murders. That has always been impossible as a matter of law.
This was a great campaigning slogan/statement of principle. But it was not a correct understanding of the law, as lawyers tried to point out (2/?)
This was a great campaigning slogan/statement of principle. But it was not a correct understanding of the law, as lawyers tried to point out (2/?)
What actually happens in such a case is about his *intent*, NOT her consent.
In short, if a jury believes that a man meant to engage in a sex game, rather than to kill/seriously injure the woman, they can't convict him of murder.
The Latin term (sorry) is "mens rea". (3/?)
In short, if a jury believes that a man meant to engage in a sex game, rather than to kill/seriously injure the woman, they can't convict him of murder.
The Latin term (sorry) is "mens rea". (3/?)
"Mens rea" = guilty mind. It's about what a defendant *intended* through his actions. It allows the law to distinguish between pure accident, manslaughter (i.e. negligence), or actual murder.
For murder, a defendant must have meant to kill or seriously hurt their victim. (4/?)
For murder, a defendant must have meant to kill or seriously hurt their victim. (4/?)
(there's more complexity to what I mean by "seriously hurt" in the last tweet but we don't need it here).
The point is that the defence will aim to convince the jury that this "mens rea" wasn't present- & that's the function of being able to say it was sex that went wrong. (5/?)
The point is that the defence will aim to convince the jury that this "mens rea" wasn't present- & that's the function of being able to say it was sex that went wrong. (5/?)
Importantly, many of these cases don't even go to a jury because the prosecutors know in advance that this is what the defendant is going to argue, and they don't think they can disprove it.
And they do have to disprove it- because the burden of proof is on the prosecution (6/?)
And they do have to disprove it- because the burden of proof is on the prosecution (6/?)
I'm not urging despair. I think there are things that can be done to stop men arguing this spuriously. Perhaps when people stop dismissing the views of lawyers, as they have done on this issue from the start, we'll see progress.
Perhaps some lawyers are also feminists?! (7/?)
Perhaps some lawyers are also feminists?! (7/?)
But, to be clear, the idea that a victim "consented" to be killed was never the point.
Which means the Domestic Abuse Bill law "change" (in reality, a restatement of the existing law that you can't consent to be killed or seriously hurt) will make not a jot of difference.
(8/8)
Which means the Domestic Abuse Bill law "change" (in reality, a restatement of the existing law that you can't consent to be killed or seriously hurt) will make not a jot of difference.
(8/8)
