By Hannah Price BBC News
Earlier this year, Mary, 43, stood in a courtroom facing the man she believes groomed her after they met online – and then physically and sexually assaulted her.
“I find it almost impossible to put into words, the depth and measure of the damage that the defendant has caused me,” she said, reading aloud from her victim’s impact statement at her attacker’s sentencing hearing.
“I still feel as though I am trapped in the rooms where the crimes took place.”
She had reported two assaults – which involved being kicked and cut with a knife – in late 2017. But around two years later, the Crown Prosecution Service (CPS) informed her that the perpetrator would not be charged. It was because of what is known as the “rough sex” defence, where the accused claims that the violence was consensual.
In theory, the “rough sex” defence should not have been admissible in this case because a legal precedent says a person cannot consent to serious bodily harm. However, campaigners say that in practice the CPS and police have dismissed cases of violence against women as “rough sex”, and decided to drop them rather than go ahead with prosecution. In a letter to Mary, the CPS suggested that the courts could overturn the legal precedent, and the defence could be allowed if her case were taken forward.
The letter, seen by BBC News, said: “A prosecution could follow in relation to this offence but the courts have shown an interest in changing the law so that the suspect could say that you consented to these assaults.”
After two appeals, Mary’s attacker was charged with actual bodily harm (ABH) and eventually given a custodial sentence of more than four years. This is why she says the “rough sex” defence being clearly outlawed is so important.
“The perpetrator’s eventual conviction shows the CPS’ initial decision was wrong,” she tells the BBC. “I want other survivors to know that despite the system being hugely flawed, the process to challenge prosecution decisions can work and that hopefully more and more cases will get through without the victim having to continually fight against the system.”
Fiona McKenzie, of the group We Can’t Consent to This, which led calls to end the use of “rough sex” defences, told BBC News the Domestic Abuse Bill becoming law was a “big day” for its campaign.
But she stressed that “the new laws must be enforced, with the government leading on training and guidance to ensure it’s effective from the outset”.
Commenting on Mary’s case, a CPS spokesperson said: “We would like to repeat our apology to the victim for the distress caused by our initial decision not to bring any charges in this case.
“Claims that a person has ‘consented’ to an assault have never prevented us from prosecuting if there is sufficient evidence, and upon further review this offender was charged and convicted for three counts of ABH as a result of the violence he inflicted.”
Mary had also alleged rape, but the CPS decided not to move forward with this allegation. The spokesperson said the legal considerations “are different in a rape complaint”, adding: “We have explained to the complainant that we could not bring a rape prosecution in this case due to insufficient evidence proving an absence of consent.”
‘A type of justice’
Under the new Domestic Abuse Bill, non-fatal strangulation becomes a specific offence and perpetrators could get up to five years in jail. For Sophie, 33, that news was bittersweet.
Soon after moving in with her ex-partner, Sophie says abuse crept into their relationship as he isolated her from her friends and family. For four years she says she experienced emotional, physical and sexual attacks – but the moments that still haunt her the most are the times when he strangled her.
“It was his favourite form of punishment,” she says. “He wanted to take the oxygen, the breath out of my body, that is one of the most sinister things you can do to any other human.”
“It’s not a punch or a kick, but a sustained pressure and that despair that you go through in your head – ‘I can’t get this person off me’ – and how that lives with you forever in day-to-day life is horrific,” she adds.
Sophie says that one time neighbours called the police after overhearing an attack, when she was strangled for hours and headbutted so that her nose bled. She alleges the police did not take the strangulation seriously and were more concerned with her busted nose. But when she looked in the mirror she could see the physical effects of sustained strangulation – burst blood vessels all over her face and flaring marks around her neck.
Sophie’s ex was charged with common assault, which normally only carries a maximum sentence of up to six months. That is despite prosecution procedure stating strangulation should be charged as actual bodily harm – a more serious offence. He was given a fine of £150 and a 12-week custodial sentence – suspended for 18 months.
Sophie says non-fatal strangulation becoming an offence is a relief: “It feels like a type of justice, even though indirectly”.
“But it’s frustrating as well, thinking it should have happened sooner. He shouldn’t have been able to walk away with a £150 fine for almost killing me and psychologically damaging me for life.”
The Centre for Women’s Justice says non-fatal strangulation and threats to disclose private sexual images are well known ways of instilling fear and control in domestic abuse.
“We very much hope that these new powers will be proactively used by criminal justice agencies and not become laws that sit little-used on the statute books,” it said.
The UK’s Revenge Porn Helpline, which supports many victims of intimate image abuse threats, says the development is a great start and will help stop some lives being ruined by intimate image abuse.
The Domestic Abuse Bill is not without criticism, after amendments for a stalking register and strengthening child contact centres were defeated and therefore not included in the bill.
My Image My Choice, a campaign raising awareness of intimate image abuse, has concerns that the criminalisation of threats to shared intimate images does not go far enough as it currently only pertains to partner violence.
“We need to ensure our laws cover threats to share outside of domestic abuse contexts, such as gang-led sextortion,” it said in a statement. “We need survivor-led policy.”