Understanding the ‘Rough Sex’ Defence
The so-called ‘rough sex’ defence has been a controversial legal argument used in UK courts, where defendants accused of killing or seriously injuring their partners claim that the harm was a result of consensual sexual activity gone wrong. This defence has been used in several high-profile cases, sometimes leading to reduced sentences or acquittals. However, growing public and legal pressure led to legislative changes under s7 of the Domestic Abuse Act 2021 which were inserted into Serious Crime Act 2015 (s75A) and came into effect from 07 June 2022.
An offence under s75A Serious Crime Act is triable either way and punishable following conviction on indictment with imprisonment for a term not exceeding 5 years, or a fine or both.
S75A targets a type of non-fatal offence associated with domestic abuse and coercion. However, its application is not limited to domestic abuse cases.
Previously if no visible injury was caused, cases of suffocation or strangulation, no matter how frightening, or dangerous, were prosecuted as batteries.
Now, if serious harm is caused, (ABH or more serious), then consent cannot be relied upon as a defence, unless the infliction of the serious harm, is neither intentional, nor reckless.
In cases where the parties are engaged in S & M for sexual gratification it will still be a defence to show that valid consent was given, even if serious harm does accidentally result.
This offence is taken very seriously by the courts and sentences of immediate imprisonment will ordinarily follow upon conviction.
Recent clarification
Court of Appeal case R v Jones (Anthony) 2025 EWCA CRIM 195
The Court of Appeal stated that section 75A creates a single offence of non-fatal strangulation or suffocation, which may be committed in either of the ways specified in subsection 1(a) or 1(b). The fact that one of the two ways of committing the offence requires a specific intention and the other way may be committed by a reckless act does not point to a conclusion that there are two distinct offences. If Parliament intended there to be two distinct offences, it could have easily created them by assigning a separate section of the Act to each of them
For legal advice on domestic abuse cases or related legal matters, contact Mark Kelly today.
