Victoria Thomas – The New Zealand murder of British tourist Grace Millane, whose unnamed killer was this week sentenced to life imprisonment with a 17 years non-parole condition, has highlighted a significant rise in the so-called ‘Grey Shades’ defence of sexual consent in ‘rough sex’ cases internationally.
The Millane case has also showcased, if that is the word, a defence that has been under increased scrutiny by both legal and legislative experts, as well as those who seek to remove it as a defence in such cases.
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The ‘sex-game-gone-wrong or so-called ‘Grey Shades’ defence named after the book and movie is not new. In the Millane case, the prosecution argued that the defendant had “eroticized” Millane’s death because of a “morbid sexual interest.”
Evidence showed that he had taken “trophy” photos of her body and watched violent pornography while her body remained in the hotel room where she had died.
The New Zealand case has aroused international debate over the use of the defence which, by definition and logic can hardly be said to somehow indicate a victim has consented to her (or his) own murder.
Detective Inspector Scott Beard said he had never before worked on a case that had such international impact, and said the “rough sex” defence used by the killer “repeatedly re-victimises the victim, and their family”.
In the UK, The Guardian reported the murder in detail and in a November 2019 article Samantha Keene a teaching fellow at Victoria University, wrote —
Millane was violently murdered by a man who strangled her, took intimate photographs of her, lied to police and buried her in the bush. It is these actions that should have been the focus of the trial. Unfortunately his despicable actions seemed to get lost in a sea of interest in her sexual history.
None of this should have happened because the issue this case is actually about is men’s violence against women. Women’s sexual histories have no place in a murder trial.
The Guardian
At least 60 UK women have been killed in episodes of so-called “consensual” sexual violence since 1972, with at least 18 women dying in the last five years, according to the advocacy group We Can’t Consent To This.
The lobby group has developed strong interest in removing the defence and fielded media interviews and stories on BBC Breakfast, ITN, Sky, Channel 5, local TV and radio stations, with founder Fiona Mackenzie also fielding interview requests from the US and elsewhere.
In another Guardian article, the work undertaken by Fiona Mackenzie was highlighted.
Mackenzie was prompted to found the movement following the case of Natalie Connolly who was brutally killed in December 2016 by John Broadhurst , her partner of a few months, who left the 26-year-old bleeding to death at the bottom of the stairs in the home they shared with her eight-year-old daughter.
Connolly had suffered multiple blunt-force injuries but Broadhurst claimed Connolly’s death was the result of “rough sex”, and was found guilty of manslaughter.
CNN’s View
CNN also wrote a lengthy piece on the Millane murder and Shades of Grey defence question.
CNN wrote of their interview with Susan Edwards, a barrister and professor of law at the University of Buckingham, who said that 30 or 40 years ago, it was unlikely that a defendant would claim that the victim consented to sexual violence.
“He would be less likely then, I think, to try and use as an excuse that she had consented to sexual violence,” said Edwards, who has been tracking and working on domestic violence cases since the 1980s.
“And if he had, then it would have been extremely doubted — it wouldn’t have gone in any way to his credit that he was trying to use such a totally unbelievable excuse,” she added.
“Now, regrettably, there are some people that might be willing to believe it because we now live in a world where some people are tolerating this commercial sexualization of violence,” she told CNN.
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Claiming an assault or homicide was a case of “rough sex gone wrong” would not work as a defense, Edwards said, but could have some “mitigatory impact” on a defendant’s culpability, and sentencing.
In some cases, defendants could be handed sentences with no jail time.”To establish murder, there has to be intention. So, if they can convince the jury that there was no intention to kill, then the verdict will be one of manslaughter.”
Edwards has been working to make strangulation a standalone offense in the UK where strangulation or choking is only charged if it occurs in the course of committing some other indictable offense, such as rape.
The Huffington Post & ‘Counting Dead Women’
The Huffington Post wrote about Karen Ingala-Smith, whose work was the inspiration for We Can’t Consent To This and is chief executive of domestic violence charity Nia, telling the news site: “Women don’t die from rough sex. Women die because men are violent to them.”
Ingala-Smith also founded the Counting Dead Women campaign, believes the “rough sex” defence appears to be partly a consequence of a rise in access to pornography online, and is at the same time driving an increase in demand for increasingly violent and degrading porn.
“And men are expecting to take that to the bedroom with women they’re having sex with. I think women are pressured whether they’re conscious of it or not to accept violence during sex and do things that weren’t commonplace 10 or 20 years ago.
Huffington Post
Blogging for HuffPost UK alongside MP Mark Garnier in July, Harman said: “Men are now getting away with murder, literally, by using the ‘rough sex’ defence. What an irony that the narrative of women’s sexual empowerment is being used by men who inflict fatal injuries.
Referring to the Broadhurst and Connolly case, the Camberwell and Peckham MP said: “This is truly the ‘50 Shades of Grey’ defence. Men are using the narrative of women’s sexual enjoyment of being injured by violence to escape murder charges and face only manslaughter charges. Instead of life imprisonment they are out of prison in just a few years.
BBC Report on “Shades of Gray”
A BBC report on the Grace Millane ‘Shades of Grey’ defence reported on British Prime Minister Boris Johnston’s view that the law permitting the defence would be changed, following a question put to the PM by Grazia Magazine.
When Grazia asked Prime Minister Boris Johnson about the proposal, he said: “I agree with Harriet Harman that the ’50 Shades defence’ is unacceptable and we’ll make sure the law is clear on this.”
BBC
The BBC also reported on author and journalist Rebecca Reid, who has written about her experiences with BDSM, said that such practices were n ow “more mainstream” but in Grace Millane’s case it was not rough sex that killed her.
“The difficulty is that it feels like people who have nothing to do with BDSM are appropriating it to try and get away with some vicious and evil behaviour, which is really sad for a community that has spent a long, long time fighting for some recognition and a right to exist in an authentic way,” she said.
“The important thing with the Grace Millane case is that it was not that he was a well-intentioned young man trying to please his new fling who accidentally got it wrong. This isn’t a case of people emulating what they’ve seen in porn and making honest mistakes.
“This was calculated murder.”
The Grace Millane ‘Legacy’
If anything, the use of the ‘Shades of Gray’ defence by the New Zealand defence counsel has helped to further raise the serious issue of its applicability in criminal law in cases of both sexual abuse and homicide.
In the UK, former Labour leader Harriet Harman is currently working towards have two changes made to the UK Domestic Abuse Bill One where, in cases of death or serious injury, the defendant could not claim the victim consented; and in the second to make the decision to use a charge less than murder (such as manslaughter) in domestic homicide cases sit with the director of public prosecutions.
The House of Lords ruled in the 1994 case of R v Brown that, if the injuries were serious, a defendant could not a claim a defence that the victim consented. Harman is demanding this becomes statute and is added to the Bill.
Whether Grace Millane’s murder will add urgency to the legislation or prompt other jurisdictions to limit or remove its application is yet to be seen. But her murder and the sentencing of her killer are yet another sad statistic in this area of the law.
*Victoria Thomas writes on legal and related issues
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