What’s Gone Wrong with the ‘Sex Game Gone Wrong’ Defence Ban?

What’s Gone Wrong with the ‘Sex Game Gone Wrong’ Defence Ban?

The Domestic Abuse Bill promised to end the use of the defence after a woman is killed, but as two recent cases show, that simply hasn’t happened

The Labour MP Harriet Harman has written to the Director of Public Prosecutions Max Hill regarding two cases of men convicted of manslaughter, after two women died in what the men claimed were ‘sex games gone wrong’.

Warren Coulton was convicted of manslaughter after Claire Wright was killed when he put a sock in her mouth and tied her hands behind her back. Sophie Moss was killed by Sam Pybus, who entered a guilty plea for manslaughter. She died of strangulation. 

In her letter, Harman stated that the Crown Prosecution Service – the body that decides which criminal cases are prosecuted in England and Wales and conducts the prosecutions – accepted the sex game gone wrong defence, which she said is “the ultimate victim blaming”. 

“My concern is that we are in a situation where any man can claim he killed his partner and that she consented,” she wrote, asking Hill to review the prosecution decisions in both cases. 

Hill’s response said that Coulton was convicted of manslaughter by gross negligence because there “was no evidence he intended to kill Claire Wright”. Similarly, he said that there was no evidence that Pybus “intended to kill” Sophie Moss or “cause her grievous bodily harm”. 

The exchange raises important issues about the ban on the sex game gone wrong defence as part of the Domestic Abuse Bill that were voiced, but troublingly ignored, at the time of the bill’s passing. 

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Intent to Kill

The use of the defence in cases where a man has killed his partner has risen dramatically since 2010.

The campaigning group, We Can’t Consent To This, has counted at least 60 uses of the defence in total, although its list does not include Moss and Wright. Of the 60, around 90% of the killings took place since 2010 and the majority of perpetrators were convicted of murder. 

Following a concerted campaign by the group, women’s organisations and MPs, an amendment was added to the Domestic Abuse Bill to end the use of the defence. The amendment would “clarify by re-stating in statute law the general proposition that a person may not consent to the infliction of serious harm and, by extension, is unable to consent to their own death”.

Section 71 of the bill states that “it is not a defence” if an individual “consented to the infliction of the serious harm for the purposes of obtaining sexual gratification”. It also states that “it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification” and that “nothing… affects any enactment or rule of law relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence”.

However, a conviction of murder or grievous bodily harm still requires proof of intent. This means that a jury must come to the conclusion that the killer’s actions intended to murder or harm the victim. Max Hill’s response to Harriet Harman stated: “In relation to the offence of murder, the necessary intention that has to be proved is well settled and requires the jury to be satisfied so they they are sure that the defendant intended to kill the deceased.”

Harman argued that, in the Coulton case, the perpetrator “intended the actions that killed her” and that Pybus “did intend to put his hand round her neck and interrupt her breathing”. But Hill responded that this definition of intent “represents a significant departure from the common law and is one that would require a legislative revision of the law of murder”. 

This is where the ‘ban’ in the Domestic Abuse Bill falls apart. 

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Consent Versus Intent

The Home Secretary tweeted last summer that “we have published a clause to end the so-called ‘rough sex defence’ which enables perpetrators to avoid justice by claiming their victims consented to rough sex”, before thanking campaigners such as Harman. 

The legal basis of the clause was questioned by lawyers, including in a lengthy thread by the Secret Barrister. They were concerned that the change would be ineffective because there was no such thing in law as a “rough sex defence” for murder. It was already a long-established principle that no one can consent to serious injury or to being killed. This means that, if a man claims a woman consented to being killed, he has no defence. 

This brings us back to the issue of intent. The issue is not one of the victim consenting – but about the killer intending. 

In order to convict for murder, as Hill explained, the defence must prove intent to kill or commit grievous harm. The men who kill women during a ‘sex game gone wrong’ are claiming that they may have intended to cause some harm within the context of a sexual practice, but that they did not intend to kill. 

Secret Barrister provided an example: “What a defendant might say is: ‘I know it looks from all the injuries as if I intended to cause really serious harm, but I didn’t. The context was consensual BDSM. I intended to cause pain and some injury, but not *serious* injury’.”

The data shows that the numbers of men claiming that the fatal injuries they have inflicted on women were not intended, but part of a consensual sex act gone wrong, has increased – and in the majority of cases, a jury has found that they did intend to kill or cause grievous harm and they have been convicted of murder.

What is so upsetting and painful is that, because the woman has died, her voice is lost. Her killer can claim consent and she can never answer back. This is where Harman is right – men blame their victims for their own deaths and that the victim has no say. She has no defence. 

In terms of the law, Secret Barrister explains: “While, undoubtedly, unscrupulous guilty defendants will exploit this to try to avoid justice, there will also be some defendants for whom it is the truth… and if they didn’t have that intention they shouldn’t be convicted of murder.” 

They continue: “This is why we can’t just say ‘nobody is allowed to raise that defence any more’. Because it would mean treating as murderers people who didn’t intend to kill or cause serious harm. And that’s why, contrary to the news reports, the ‘defence’ hasn’t been abolished at all.”

The problem with the clause in the Domestic Abuse Bill is that it does not prevent people from using the defence – because it can’t. Nor does it change the law to say that intent isn’t needed to prove murder – because it can’t. Section 71 puts down in statute the common law principle that you a person cannot consent to being injured or killed – which was already the law.

I have covered the ‘sex game gone wrong’ issue extensively. Some of the cases haunt me – there is one in particular that I cannot even think about without crying. The horror of these deaths and the dreadful silencing and victim blaming needs to be tackled.

That is why it is so frustrating that the Domestic Abuse Bill was applauded as a way to end this defence, when really, as Secret Barrister tweeted, “nothing has changed”. 

So what can be done? First, continued awareness-raising by campaigners has changed people’s understanding and helped people to realise how men are using this defence. This has been vital and has set the agenda on how we talk about this issue. They deserve praise, respect and support.

Second, there needs to be more conversations about the influence of violent pornography, more education about consent, and much more support for women trapped in violent relationships. As a society, we need to stop accepting and normalising male violence against women, stop blaming the victims, and stop excusing the perpetrators.  

It is up to a jury to decide whether a man is telling the truth about consent and intent – but it is making that decision within a patriarchal society that all too often blames women for the violence committed against them and seeks to excuse men for that violence. 

The more we tackle that culture, the more we can protect women’s access to justice.