We should be very concerned about anti-BDSM campaigners using murder trials to push their moralising agenda.
There are various ways in which we can react to murder. We can be horrified by the meaningless loss of life, for example – a normal reaction if we have any sense of empathy. We can perhaps see the crime as evidence of a society out of control – a reaction stoked by media hysteria more than actual crime figures. And we can shake our heads in dismay at the sheer callousness of a killer. For some people, though, a murder is an opportunity to push an agenda – to force through legal changes that are driven by emotion rather than evidence. Emotion driven law is rarely good law – it tends to be a sledgehammer to smash a nut, drive-by hysteria rather than evidence and often goes on to run roughshod over the rights of people who have never hurt anyone, but who suddenly find themselves on the wrong side of a law that does nothing about the concerns that brought it into being. We saw this some years ago with the Extreme Porn laws, where it was made illegal to possess images of a whole swathe of consensual, legal-to-perform but non-vanilla adult sex acts, even if the images were not actually real – ‘realistic’ was good enough, and then the poor individual in question would have to hope that magistrates or juries would decide that the material in question either didn’t meet the deliberately vague threshold of ‘extreme’ or wasn’t actually that realistic. Given that one man was hauled through the legal system (in the process of which he suffered a heart attack, was banned from seeing his daughter, spent six months on bail and suffered harassment in the street) over a ‘bestiality’ clip that actually featured a man dressed as a talking tiger, the claim that common sense and proportionality would come to play in these cases is not reassuring.
The Extreme Porn laws came about directly as a result of the murder of Jane Longhurst by Graham Coutts, who was a viewer of websites featuring acts of (staged) sexual violence. Longhurst’s mother became a handy front for anti-porn groups who rightly saw her as beyond criticism – who would attack a grieving mother? She was understandably motivated to make her daughter’s death mean something and to prevent similar crimes, but she was running entirely on emotion rather than evidence. Rather than blame Coutts for his actions, the cause of the crime was instead shifted to his internet viewing. This despite the evidence showing that violent sex had been an obsession of his for years, the website visits were seen as the cause of his murderous lust rather than a symptom. How outlawing possession of extreme porn actually made anyone safer was never quite explained – if someone was willing to go as far as murder, then it’s unlikely that criminal sanctions against viewing such material would be much of a restraint. But the law was pushed through on a wave of media hysteria and the support of opportunist pressure groups, with little regard for how many people it might affect. The government predicted that there would be around thirty cases a year – in fact, between 2008 and 2011, there were 2236 cases. Most (86%) of these related to bestiality imagery, much of which was found on phones or computers during unrelated investigations, and much of which would appear to have been possessed for non-sexual purposes – as outrageous clips designed to shock and bad taste humour – by people who had no idea that they were even illegal until they were arrested, often represented by lawyers who had little more understanding of the law than their clients did. How exactly these arrests and convictions have helped prevent more sex murders is something that no one has quite been able to explain.
I have the same icky feeling that I had when this law was first being mooted and then rushed into being when I look at the way new feminist pressure group We Can’t Consent To This are using the murder of Grace Millane to push an agenda that clearly goes beyond the stated intent of “stopping men getting away with murder”. The Millane case, taking place in New Zealand, has been a catalyst for outrage at the defence of ‘death by rough sex ‘ – that is to say, claiming an accidental killing during a BDSM or aggressive but consensual sexual encounter. In the case of Millane’s unnamed killer, this was an especially outrageous, slanderous and implausible claim given his behaviour afterwards – watching porn, taking photos of the corpse, disposing of the body and then going back onto dating sites – and one that the jury saw through easily; he was convicted of murder. His pathetic excuses and the attempts to shift the blame onto his victim failed miserably. Millane’s taste for BDSM was established in court, but it had no effect on the case or the huge outpouring of public sympathy for her. Despite the claims of anti-sex moralisers, no one but them seemed to believe that her lifestyle made her in any way culpable in her murder.
But this new group are demanding that ‘rough sex’ should no longer be allowed as a mitigating defence under any circumstances. They point to 59 cases where it has been used as a defence, cases where men are sometimes charged with manslaughter instead of murder, or even let off completely. This does make it sound like a terrible ‘get out of jail free’ card is being played. But these cases occurred over a very long period of time, stretching back to 1972. And it’s not even a particularly successful defence gambit: in those 59 cases, there have been 36 murder convictions and another 16 manslaughter (which doesn’t always guarantee a significantly shorter sentence). Only two cases resulted in no charge, and two more in acquittal. This is not, despite the inference, either a widely used or hugely successful defence.
Now, there are certainly dangers inherent in BDSM, especially if people don’t know what they are doing or are intoxicated. But vanilla sex can kill people too. Alongside the well-known risks of heart attacks, people have died or seriously injured themselves in all manner of ways, from strokes to fatal injuries caused by banging your head during intercourse to tears, breaks, cuts and countless other freak accidents. Similarly, boxers, skydivers, racing car drivers and countless other people will sometimes die during the pursuit of pleasure. Little, if anything, we do in life comes without risk. The tiny number of people who really do have terrible accidents happen during a consensual BDSM session should not have the right to defend themselves against murder charges taken away just because some people have abused that right, and because some people disapprove of their lifestyle. This seems a surefire route to miscarriages of justice.
But behind the curtains, the main thrust of We Can’t Consent To This – as the name suggests – is that there is no such thing as informed consent when it comes to BDSM. Women don’t – indeed, can’t – consent to submission, spanking, bondage or humiliation (I’m not sure how they explain away female dommes, but never mind). Those who willingly take part in such scenarios and those who believe it to be a part of their sexuality are victims of false consciousness. As the group’s spiritual leader Karen Ingala-Smith commented to the Huffington Post, “I think women are pressured whether they’re conscious of it or not to accept violence during sex” (our emphasis). Made up of veterans of assorted anti-porn campaigns, the group is openly opposed to BDSM full stop – there is no safe or consensual kinky sex in their eyes – any woman involved must have been hoodwinked by the all-pervasive presence of ‘violent’ porn (and we can safely assume that their idea of ‘violent’ porn is rather broader than that of most people) and the pernicious influence of 50 Shades of Grey. With the help of Labour MP Harriet Harman, they are trying to push the notorious precedent-setting Spanner judgement of R v Brown – the legal ruling that effectively said that there was no consent to anything more than ‘transient and trifling’ injury during sex, and which has effectively become case law – into the statute books, which would confirm it as the law of the land rather than a mere legal precedent that could at some point be overturned. The Spanner ruling – handed down, lest we forget, on a group of gay men engaged in pretty hardcore BDSM sessions and subsequently used disproportionately against other gay men – effectively outlaws huge swathes of consensual BDSM activity, and putting it on the statute books would make it much easier to prosecute practitioners by removing the ability of the courts to interpret the evidence. Hauling people into court for spanking their willing partner (bruising being seen as more than either transient or trifling) will probably do nothing about domestic violence beyond artificially spiking the stats – but redefining the law to suggest that women (and men) are incapable of informed consent is probably the end game here.
There’s a sense of desperation and opportunism here. In recent years, kink culture has become more mainstream and, dare we say it, cooler than it has ever been. And it has been women who have been pushing it forward – the feminist porn producers, the campaigners organising face sitting protests and other fightbacks against censorship restrictions on non-vanilla porn, the club promoters and the advocates – BDSM has arguably never been more female-led. If you are of the moralising, censorial persuasion, this is a major threat to everything that you believe, and so you start to clutch at straws. Suggesting that the mainstreaming of BDSM has been responsible for an epidemic of murder, assault and men getting away with it must seem like a great gambit to try out – purportedly supporting the victims while actually exploiting and degrading them.
We Can’t Consent To This are saying that Millane was incapable of making the lifestyle choices that she did – that her taste for BDSM was nothing more than brainwashing. It seems a strange and twisted sort of feminism that wants to remove the agency of women who engage in sexual activity that they don’t approve of. They are effectively reducing her to a helpless victim even before the murder. In essence, what they do is little different to the people who lip-smackingly pored over stories of Millane’s sex life and then suggested that she was somehow ‘asking for it’. Like the people who claim that wearing a short skirt makes a woman somehow responsible for being raped, or that the victims of Dennis Nilsen were somehow to blame for their deaths for going home with a strange man that they’d met in a gay bar. Their belief that BDSM is a shameful secret and something that no one could consciously agree to also sounds not dissimilar to claims that used to be made about homosexuality. It’s bigotry disguised as moral concern.
We best serve the memory of murdered women (and, for that matter, murdered men) by respecting their lifestyles, their sexuality and their choices, not by denying their sexual autonomy, demonising the community that they were part of and exploiting their deaths for our own purposes. They have already been victims of the worst crime imaginable – let’s not allow people to victimise them further to push their own moral agenda.