Murder trial defence of ‘rough sex’ may be axed
SCOTLAND could outlaw a ‘rough sex’ defence in murder trials in a major shake-up of homicide law.
Centuries-old legislation could be modernised to bring the law into line with 21st century attitudes and beliefs.
The defence of rough sex was prohibited south of the Border last month – and now Scotland could follow suit. Other potential reforms include allowing victims of serious domestic abuse to use their ordeal as a defence to a murder charge.
The proposed changes have been devised by the Scottish Law Commission (SLC), a think-tank which advises ministers.
Last night Scottish Tory justice spokesman Jamie Greene said: ‘The Scottish Conservatives called for legal changes to remove the “rough sex defence” if necessary in our manifesto. This proposal appears to be a welcome step in the right direction.
‘Full consultation must take place to ensure this work is carried out effectively so it will get victims and their families the justice they deserve.’
The ‘rough sex’ issue gained worldwide attention following the 2018 murder in New Zealand of British backpacker Grace Millane, whose killer said she died accidentally during consensual sex.
The defence involves a claim by the accused that the victim died accidentally as a result of either a consensual sex game gone wrong, or consensual rough sex.
Women’s rights campaigners say the normalisation of violent sex in popular culture means men facing criminal charges for harming women are increasingly claiming the violence was consensual.
The SLC asks in its consultation paper: ‘Do you think statute should expressly state “rough sex” (or an equivalent expression) is not a valid defence to homicide in Scots law?’ It is also considering whether ‘provocation by sexual infidelity’ should continue to be a partial defence to murder and is calling for views on whether a defence should be created for victims of ‘prolonged domestic abuse who kill their abuser’.
Prosecutors must establish that an accused murderer acted from a ‘wicked intention to kill’ or from ‘wicked recklessness’.
The SLC looks at whether these terms need to be updated – as ‘wicked’ may be seen as open to interpretation and archaic.
Its paper states: ‘The homicide law of England and Wales does not use terminology such as “wicked”, “evil”, “felonious” or “depraved”. However it might be thought that the phrase
‘A step in the right direction’
“malice aforethought” [used in English law] has something of the same connotations.’
Lady Paton, SLC chairman and lead commissioner, said: ‘Murder and culpable homicide are generally regarded as the most serious of all crimes in Scots law.
‘This discussion paper examines a wide range of issues in relation to the mental element in homicide to ascertain whether the law in this area is fit for purpose in today’s society.
‘We are keen to hear from anyone interested in the law of homicide ranging from legal practitioners, criminal law academics, interest groups, victims and their families, through to the wider general public.
‘The responses we receive will help us to shape policy and make any necessary proposals for future reform.’