The 'rough sex' defence

[KimGordon67]

Not the most fun of topics, but I just saw this, and thought it might be of interest to others. I have to say that I was quite heartened by the overall response to the Grace Millane case - it would have been easy for popular opinion to have vilified her as a result of a combination of factors (the one night stand, the Tinder factor, her stated interest in 'unconventional' sex). While the defence obviously drew on these tropes quite a bit, they weren't what dominated the media reporting - present, definitely, but not the overriding perspective.

The article seems pretty balanced, and an interesting read.
Rough sex murder defence

 

[Ropebunny]

I followed this with great interest, as did a lot of others on a kiwi message board I frequent and it really was so very heartening that people really seem to be demonstrating a better understanding of consent, and what it is (and isn’t in this case). Consenting to light choking is light years away from the minutes of restricted airflow it would take to kill an average, healthy person and I’m so pleased that despite the defence presenting that argument that it could be accidental, no one I’ve heard anything from buys that.

Good outcomes in cases like this are so, so important. Just because we’re kinky and at times take risks with how we have sex shouldn’t mean that we aren’t entitled to the same justice as others. Sentences are usually very weak in NZ, but at least in this case the perpetrator did receive an appropriate sentence.

 

[Jada59]

This is nothing new. I can remember reading about this and auto asphyxiation when I was a teen. All kinds of warnings about it back then. I'm not into it. If a person asked me to do it to them, I wouldn't.

 

[twister947]

Thank you for posting this; I look forward to the responses.
I found the "bad luck" comment jarring in a discussion of murder and the law.

 

[KimGordon67]

This is nothing new. I can remember reading about this and auto asphyxiation when I was a teen. All kinds of warnings about it back then. I'm not into it. If a person asked me to do it to them, I wouldn't.

I think auto asphyxiation has more potential to go wrong, because once you black out, it's a bit tricky to resolve the situation. I did a bit of reading about this a while back, and it's almost impossible to find a case where anything untoward has happened when everyone was being sensible - the accidents happen when it's a sole person, when there's a LOT of drugs/alcohol involved, when people don't observe sensible safety procedures (e.g. the sex worker here who's client died because she had him rigged up in some sort of compromising situation and then went to make a cup of tea and have a chat with her boyfriend), or where there's malicious intent.

As one person said in the linked article, ""So if you are in your right mind and your partner stops breathing, a jury could reasonably infer that the logical thing to do would be to stop strangling them and say, 'Are you all right, pet?' rather than maintaining pressure on an unresponsive human being for another few minutes," he said."

 

[Dreamliner]

Hi Kim, I have posted previously on this and quite clear this was way out of line. There is no defence for what he did. As we also now know this guy had prior issues with other partners, fortunately they were able to stop him.

It is tragic she was looking to explore BDSM and ends up meeting exactly the wrong person. Unfortunately, some use the cloak of BDSM to cover their abusive intent.

 

[KimGordon67]

Hi Kim, I have posted previously on this and quite clear this was way out of line. There is no defence for what he did. As we also now know this guy had prior issues with other partners, fortunately they were able to stop him.

It is tragic she was looking to explore BDSM and ends up meeting exactly the wrong person. Unfortunately, some use the cloak of BDSM to cover their abusive intent.

Yes, I recall the discussion about the Millane case a while back ... the article I linked is kind of interesting as it's a broader discussion. I thought it was good that a range of perspectives were presented, some of which were pretty sensible.

 

[littlebirdjoy]

I appreciate this topic.
Twister, I agree with you, that comment was completely the wrong tone for the situation.

It is a very very hard line to draw. I appreciate both sides. If we legalize the right to decide for your own body including the right to consent to bodily harm as many of the activities under BDSM requires then it opens up the floor to a whole line of defense that can be exploited. How to determine negligence vs malpractice vs malicious intent when you arent physically present in the moment? Basically it throws the whole concept that many districts have adopted in the US "if there are marks, it is domestic violence, someone is going to jail." It means they actually have to dig deeper and that means requiring more of officers, but it also means more room for error.

I spent a bit of time the first day I read this trying to problem solve in a sense... but it is a really tough issue to problem solve as discretion is important for so many people.

I went through a whole line of thought revolving around certifications that could be issued which would be akin to saying "I did some training under someone who knows what they are doing" which would kinda lead credability to a "practitioner" if something is a genuine *well crap that went sideways. But there are so many issues with it.

It isnt just an issue for the people on the lower case side of the slash, it is almost a bigger issue for those on the Caps side. What protects them when someone changes their mind? This was what gave rise to the above line of thinking. A way for them to establish some line of credability that would hold some weight in a court case, much like any other extreme sport practitioner who is licensed to run an event, it gives them some measure of safety in that they have documented record of safety and knowledge in whatever their dangerous sport is.

I know this is all a side tangent from the specific case, but I believe that is what the OP was asking for.

I've personally been in two situations that went sideways. I know one was malicious and terrible and taught me a lot about what NOT to trust (I was young, naive, and way too trusting) and another that just went sideways with everyone's close to best intent. I know he meant me no harm, and I entered into the situation with the best of intentions as well. We parted friends, but I would never submit myself to him again, we just don't work. For the first situation, I chose not to press charges for many many many reasons, and i think that was the wrong decision to make. I'm sure in the end I endangered other girls' well being by not speaking up. I was too afraid of the personal consequences to myself.

In the end, I wish that the law would acknowledge the right to consent to your own bodily state. I would like to see outdated and lazy domestic violence laws catch up to the rest of society. I would like two consenting adults to be able to sign notarized consent forms just like any other extreme sport which detail activities that both consent to and acknowledge the potential for bodily harm (I believe notarization would be WISE to ensure that no one is being coerced and no one is inebriated.) I think providing a way for people to become licensed practitioners of specific dangerous edge play elements as an optional way to #1 increase safety and awareness and #2 provide some measure of protection to the individual concerned if things did go sideways. In order to qualify for such licensing though they would probably need to be evaluated as safe and sane with no prior record of domestic violence, violent crime, or certain mental disorders.

I'm sure I'm missing a reason why this would be a terrible idea! Do tell.

 

[ouchfeelsgood]

Remember this?
I do. (I’m old.)

She was painted as a total whore.

https://en.m.wikipedia.org/wiki/Robert_Chambers_(criminal)

Yes. Infamous crime here in New York in the mid-1980's -- had extensive coverage on NYC media and tabloids. Chambers was called the "Preppie Killer" because he attended a number of prep schools in Manhattan. He and his victim, Jennifer Levin, met at a bar on the upper east side, then went into Central Park to fool around, and Chambers ended up strangling her, then fled the park. The police apprehended and arrested him.

In the ensuing criminal court trial, his main defense was that they engaged in "rough sex", and he reacted in self defense because she grabbed his genitals in a rough way (or something like that) . Meanwhile, he was a tall, muscular guy and probably was twice her weight, and much stronger than her. He was ultimately convicted of manslaughter, instead of 2nd degree murder. He spent 15 years in jail, was released, and arrested again later on for selling drugs. Apparently, he's still in jail.

 

[AnnieLit]

. I would like two consenting adults to be able to sign notarized consent forms just like any other extreme sport which detail activities that both consent to and acknowledge the potential for bodily harm (I believe notarization would be WISE to ensure that no one is being coerced and no one is inebriated.) I think providing a way for people to become licensed practitioners of specific dangerous edge play elements as an optional way to #1 increase safety and awareness and #2 provide some measure of protection to the individual concerned if things did go sideways. In order to qualify for such licensing though they would probably need to be evaluated as safe and sane with no prior record of domestic violence, violent crime, or certain mental disorders.

I'm sure I'm missing a reason why this would be a terrible idea! Do tell.

To be able to sign or to be required to sign a notorized agreement?? Thank you very much, but I would like to keep the state out of my bed. For one thing, any notarization will require presenting an ID. What if I have absolutely no interest in sharing my real name and address with my partner? Now all of a sudden it becomes a requirement to share that information and if for whatever reason I can't, the State sais that I am entitled only to the vanilla sex?

Another problem with this idea is that not everybody who practice D/s activities are actually in any sort of formal D/s relationship. Take a regular vanilla married couple. After many years together they start experimenting -- little bit of this, little bit of that. Can they eventually get to things that might potentually be dangerous? Yes. At what point of that exploration journey would they be required to sign anything? Who is going to tell them that you can spank her with your hand or a paddle, but you need certification for a cane? You can restrain him with velcro cuffs, but you need cpr training to use the leather ones.

 

[littlebirdjoy]

To be able to sign or to be required to sign a notorized agreement?? Thank you very much, but I would like to keep the state out of my bed. For one thing, any notarization will require presenting an ID. What if I have absolutely no interest in sharing my real name and address with my partner? Now all of a sudden it becomes a requirement to share that information and if for whatever reason I can't, the State sais that I am entitled only to the vanilla sex?

Another problem with this idea is that not everybody who practice D/s activities are actually in any sort of formal D/s relationship. Take a regular vanilla married couple. After many years together they start experimenting -- little bit of this, little bit of that. Can they eventually get to things that might potentually be dangerous? Yes. At what point of that exploration journey would they be required to sign anything? Who is going to tell them that you can spank her with your hand or a paddle, but you need certification for a cane? You can restrain him with velcro cuffs, but you need cpr training to use the leather ones.

Never once said required, Annie. I'm sorry if it came across as mandatory I was never insinuating that . Nor did I ever say it would have to be in relation to a specific day or partner, rather a detailed consent which would offer at least some form of backing. I've also had things notarized many many times. I use my passport. No ID is listed. Yes, it includes your real name, but back to my original analogy likening it to extreme sports, you kinda have to have a valid ID to sign the wavers for that too.

You may not like the reality, but in the US in many states the law is EXACTLY that. Under domestic violence laws if you have bruises on you, whether you consented to them or not in advance and in the moment, if you decide to call the police for some reason the person who put those bruises on you is going to jail.

A well written trip down the legal pathway there can be found https://milk*****/articles/wtf-since-when-is-bdsm-technically-against-the-law/ here. I agree with you, that the state shoul;d stay out of your bedroom, however, I'm equally concerned that people should have a WAY to legally protect themselves if they chose to avail themselves of it. You have the right to skydive, bungee jump, and parasail. You have the right to jump out of a plane too. Lits of people would like to teach you, too, but if those people had no way to keep themselves safe and if it suddenly became a major legal hazard to do so, do you think they still would?


To the articule posted by Fara, though it is completely on point it also makes me sick.

He was defended by Jack Litman, who had previously used the temporary insanity defense on behalf of Richard Herrin for the murder of Yale University student Bonnie Garland. Prosecutor Linda Fairstein stated: "In more than 8,000 cases of reported assaults in the last ten years, this is the first in which a male reported being sexually assaulted by a female."[7]
What a sad sad state of affairs that this is quoted yet again as having any basis in reality. Yes, the vast majority of victims of sexual assault are female and it is many times perpetrated by a male. I have known MANY many male victims of sexual assault, and my longest oldest friend who was my first Sir is open about sharing his past experience of being raped by a group of girls at knife point in high school. He was dating one of the girls, and she and her friends thought it was funny. He did not.

 

[AnnieLit]

1. If it not a required thing, then nothing stops you now from signing any document you want and notarizing it. Notary verifies only that you, the person who signs it, are really you, they don't care about the content of the document. I have notarized my signature on documents that were not even in English, so notary had no chance to know what is there at all.

2. Extreme sports are businesses, with business licenses. These licenses are controlled by the state. I don't see how this analogy is supposed to work, unless you propose that everybody does mandatory training before closing bedroom doors behind them.

3. No court in the US will even look at any signed contract or a risk waiver if something major happens. What they look at is whether or not there was negligence. Everybody signs a ton of paperwork before any surgery, but this does not help a doctor much in case he does make a mistake. What these contracts protect from are the results of expected side effects.

We are only couple steps away from requiring written consent before any sex, vanilla or not, and you advocating taking them voluntarily

What does rape has to do with any of this? Rape is a rape no matter gender of the victim, but what do contracts have to do with it?

PS: your link to milk... does not work -- Lit does not like links to many places and puts *** in place of part of an address.

 

[littlebirdjoy]

I'm not going to continue arguing why i see it as a valid idea, but whether it is or it isnt doesnt really matter, it would never get traction so it is a pointless debate.

c/p this and you will find it: wtf-since-when-is-bdsm-technically-against-the-law

 

[littlebirdjoy]

I'm not going to continue arguing why i see it as a valid idea, but whether it is or it isnt doesnt really matter, it would never get traction so it is a pointless debate.

c/p this and you will find it: wtf-since-when-is-bdsm-technically-against-the-law

 

[littlebirdjoy]

BDSM does not always equal rough sex.
The hardest holds he’s had on me has been his words and his eyes.

Well said.

 

[twister947]

I'm not going to continue arguing why i see it as a valid idea, but whether it is or it isnt doesnt really matter, it would never get traction so it is a pointless debate.

c/p this and you will find it: wtf-since-when-is-bdsm-technically-against-the-law

Minds almost never change.