Note to readers: This article contains graphic descriptions that some may find disturbing.

What do Joshua Boyle, Jian Ghomeshi and Bradley Barton have in common? They all claimed “consent to rough sex,” Ghomeshi on his Facebook page and the others in response to criminal charges of assault, sexual assault and, in the case of Barton, murder. All three men were acquitted, Ghomeshi and Boyle because the trial judge doubted the complainants’ credibility and Barton because jurors had a doubt about consent.

Should Canadian criminal law recognize a defence of consent to sexual practices that cause bodily harm? Strangulation involves the deprivation of oxygen to the brain, inevitably causing loss of brain cells and risking brain damage. Punching another in the face can fracture delicate facial bones or teeth and cause brain injury. Inserting a fist or sharp object in another’s body cavity can result in tearing, bleeding and internal damage. All of these activities present risks that can — and sometimes do — culminate in death.

Those who practise sado-masochism argue that such activities are private matters best left to the autonomous decisions of individual adults. In this liberal view, sexual freedom, exploration and expression should not be regulated by the state. They assert that criminalizing the actions of consenting adults risks disproportionately penalizing sexual minorities like themselves. Rarely, however, do we see criminal cases where the parties agree that they engaged in consensual “rough sex” but that one of them accidentally was injured. To the contrary, women usually report not consenting to the violence inflicted on them.

“Rough sex” depicted in pornography and in practice is marked by gender asymmetry. It is overwhelmingly women who are on the receiving end of this violence and whose health and very lives are on the line.

And let’s be clear: the so-called “rough sex” defence is not gender neutral. The sex is “rough” for women, not men. “Rough sex” depicted in pornography and in practice is marked by gender asymmetry. It is overwhelmingly women who are on the receiving end of this violence and whose health and very lives are on the line. For example, women are two to four times more likely than men to report having experienced strangulation, a powerful predictor of intimate femicide. Yet with the cultural scripts provided by pornography, aided by liberal feminism’s championing of “sex positivity,” judges and juries can conclude that injuries, and even death, are simply accidental by-products of violent, but consensual, sex.

The “rough sex” defence has devastating consequences for women as complainants in sexual assault trials. If the complainant had a previous sexual relationship with the accused, he will inevitably argue that the couple engaged in violent sex in the past, as both Boyle and Barton did, potentially opening the door to the complainant being cross-examined on her past sexual activity, with the accused or with others. While this evidence is supposedly not relevant to a complainant’s credibility, it functions to undermine her assertion that she did not consent to violence. Even when a consent defence is not itself the key to acquittal, there is no doubt that evidence that a complainant had previously engaged in sexual practices that risked her health and safety, or had even contemplated them, prejudices judges and jurors against her and damages her credibility indelibly. She is seen as “up for anything” and presumed to be consenting.

When a woman dies from her injuries, she has no voice to assert she did not consent to violence. Instead, an accused can testify that she consented to and, in fact, enjoyed the violence. If money is promised in exchange for sex, powerful stereotypes about women in the sex trade consenting to anything and everything infect the trial. Such was the case in the murder trial of Bradley Barton, who caused an 11-cm tear in the vaginal wall of Cindy Gladue, an Indigenous woman. The prosecutor alleged that Barton used a knife or other sharp object to cause the fatal wounds. Barton countered that he had instead thrust his entire fist into her vagina for at least 10 minutes, describing the encounter as consensual despite Gladue’s level of intoxication. The acquittal could only mean that the jury had a reasonable doubt about whether Gladue consented to this violence.

AP Photo/Mark Baker

People lay flowers and light candles during a candlelight vigil for murdered British tourist Grace Millane at Cathedral Square in Christchurch, New Zealand, on Dec. 12, 2018. (AP Photo/Mark Baker)

The recent murder of 22-year-old Grace Millane in New Zealand was committed by a man who strangled her for what experts say must have been 5 to 10 minutes. After she died, he took photographs of her corpse, watched pornography, stuffed her body into a suitcase and left it in the woods. We never heard Millane’s story except through attempts to tarnish her reputation by the introduction of sexual history evidence portraying her as someone who relished violent encounters.

In Britain, John Broadhurst left his partner to bleed to death at the bottom of the stairs. His guilty plea to negligent manslaughter was based not on the 40 horrific injuries that he inflicted on Natalie Connelly during sex, but rather on his failure to seek medical treatment as she lay dying. Connelly, like Gladue and Millane, was repeatedly depicted as responsible for her own death because of her purported enjoyment of “rough sex.”

The campaign We Can’t Consent to This has documented 52 homicides in the UK where men who have killed women claimed that the deceased consented to “a sex game gone wrong.”

Two-thirds of these victims died by strangulation. Most of the men were ultimately convicted of murder, but 14 were convicted of the lesser crime of manslaughter and another 5 were either acquitted or had charges dropped. Of course, these numbers do not include the far more numerous cases of sexual assault involving strangulation in which the victim did not die.

Why are we seeing the emergence of a “rough sex” defence now? Online pornography is proliferating and the violent and sexist nature of mainstream porn is intensifying. In fact, Barton’s laptop was found to contain recent searches for the torture of women, including “extreme penetration” and the insertion of objects in women’s vaginas. Women are consistently portrayed in pornography as submissive, if not actively enjoying the violence inflicted upon them. Even more pernicious is the confusing messaging of rape porn, where women superficially protest but then succumb to the alleged “pleasure” of rape.

Given that young people are increasingly accessing violent pornography, and given the normalization of violence against women as “just sex,” it is time for the criminal law to take a clear stand on the validity of consent to sexual activities that cause bodily harm. We argue that women’s equality rights, the pursuit of sound criminal and health policy and the need to send clear and consistent messages to young people who may be influenced by pornographic myths that violence against women in sex is normal and that women are masochistic all demand a ban on the “rough sex” defence.

In Canadian law, no one can consent to bodily harm in a fistfight, which the Supreme Court describes as having “precious little utility.” However, in Ontario, consent to bodily harm during sex will be negated only when the accused “intended and in fact caused” bodily harm. Other provinces have not yet decided this issue. In the Barton decision, the Supreme Court declined to clarify the law for the rest of Canada, and thus we are left with uncertainty in the law.

It is true that the Criminal Code has been amended to turn assault involving strangulation into assault causing bodily harm, without the prosecutor having to prove injury. However, because consent remains a defence, an accused can still argue that the complainant consented to strangulation. It is time for Parliament to explicitly acknowledge that there is “precious little utility” in allowing men to bite, strangle, punch and otherwise injure women during sexual activity. In fact, the “rough sex” defence causes irreparable harm to individual women and to women’s equality rights.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Joshua Boyle leaves the courthouse in Ottawa on Dec. 19, 2019. A judge has dismissed charges against Boyle, who had been accused of assaulting his wife, Caitlan Coleman. THE CANADIAN PRESS/Justin Tang

Do you have something to say about the article you just read? Be part of the Policy Options discussion, and send in your own submission. Here is a link on how to do it. | Souhaitez-vous réagir à cet article ? Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives.

Elizabeth Sheehy is Professor Emerita at the University of Ottawa, Faculty of Law. Her expertise is in legal responses to violence against women.
Isabel Grant is a Professor of Law at the Peter A. Allard School of Law at UBC and researches on the legal responses to violence against women.
Lise Gotell is the Landrex Distinguished Professor in Women’s and Gender Studies at the University of Alberta. Her teaching and research focus on law and feminism and on sexual assault law. She is the past National Chair of the Women’s Legal Education and Action Fund.

You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence.

Creative Commons License

More like this