• April 19, 2024
 New statutory says there is ‘no such thing as the rough sex defence’ to dish out harsher punishments after tragic Grace Millane death

New statutory says there is ‘no such thing as the rough sex defence’ to dish out harsher punishments after tragic Grace Millane death

A new statutory aggravating factor was brought in for offenders who cause death through abusive, degrading or dangerous sexual behaviour earlier this month. Discounting the so-called ‘rough sex’ defence – which means that judges are handing out harsher sentences than ever before.

After the death of British backpacker Grace Millane,22, in New Zealand in 2018, campaigners and MPs have been fighting for tougher action on offenders who cause death during intercourse or engaging in aggressive sexual behaviours. The case outraged the nation, as details of the Millane’s alleged penchant for BDSM caused commentators to accuse the court of ‘slut shaming’ the 22-year-old, after her killer revealed she had ‘asked to be strangled during sex’.

A 26-year-old man, Jesse Shane Kempson, was charged with her murder on 8 December 2018, and her body was found in the Waitākere Ranges to the west of Auckland the following day.

The incident sparked a slew of campaigns to ensure stricter measures were enshrined within UK law to eradicate the ‘rough sex’ defence.

Former solicitor general Harriet Harman stated two months ago that she wanted the law changed to ‘stop men from being able to use the defence of “rough sex gone wrong”‘ – even if the death is a genuine accident.

The measure, announced on February 14th, builds upon action taken in the Domestic Abuse Act 2021 to clarify in law that there is no such thing as the ‘rough sex defence’, and comes as the government publishes its latest Rape Review progress report.

Figures reveal that attackers are paying for their crimes as adult rape prosecutions are approaching the highest levels seen at any point since 2014 showing the government’s efforts are working.

Prosecution rates are notoriously low in the UK, with prosecutors and law enforcement finding it an uphill struggle to put domestic abusers, rapists and sex offenders behind bars.

All police forces and prosecutors in England and Wales are now six months into implementation, with the number of cases assigned a charge in the latest quarter being over 25 per cent higher than the same period in the previous year.

This support is crucial, especially for victims of rape – with around 60 per cent of investigations closing because the victim did not support -or withdrew support from- police action.

To ensure these efforts don’t slide, the government has also appointed leading academic Professor Katrin Hohl as the new Independent Advisor to the Rape Review.

Having led a scheme to overhaul the way in which police forces investigate rape called Operation Soteria- Professor Hohl also carried out one of the largest ever surveys of victims to better understand how they can be supported.

Independent Advisor to the Rape Review Hohl said:

“Rape is the most serious survivable crime in English and Welsh law. The purpose of the rape review is to reform the criminal justice process so it is fit for purpose for rape victims and effective in holding perpetrators to account. As the Independent Advisor, I will challenge and support the government in achieving this ambition.

“I commend the progress made to date. My priority is to help tackle the remaining challenges, such as timeliness, strengthening victims’ rights and meeting victims’ needs, head-on.”

To ensure all victims know the support available to them, the government has also launched a Victims’ Code campaign, to raise awareness of the rights everyone can expect to receive as a victim of crime.

Through the Victims and Prisoners Bill, police, prosecutors and prison and probation workers will also have a new Code Awareness Duty to make sure victims know their rights – including the right to be referred to a support service, receive updates on their case and the right to make a victim personal statement.

Lord Chancellor and Justice Secretary, Alex Chalk KC, said:

“This government is on the side of victims, who should be supported throughout their journey through the criminal justice system, and our new Victims’ Code campaign sets out exactly what they can expect every step of the way.

But we must also hold offenders to account. This new aggravating factor send a clear message that killers who threaten the safety of women can expect to feel the full force of the law.”

The campaign was developed hand-in-hand with criminal justice agencies and victim support organisations. Materials demonstrating that the Victims’ Code is there for every victim, whatever the crime, are being cascaded across England and Wales.

This builds on work to make sure victims get the justice, and offenders pay for their crimes, including ensuring rapists and serious sexual offenders serve their full custodial term in prison and to widening the use of whole life orders for the worst offenders.

Minister for Victims and Safeguarding Laura Farris said:

“As today’s report shows we have made significant improvements in the response to rape across the criminal justice system with adult rape prosecutions approaching the highest levels seen in the last decade and number of adult rape cases arriving at the Crown Court is higher than at any point since 2014.

“While there is still much work do, Professor Hohl’s expertise will be vital in driving this further.”

Fiona Mackenzie, Founder of We Can’t Consent to This campaign added:

“This is an important step in ensuring that men who kill women in sexually motivated violence do not get away with a lighter sentence. This change should ensure that any future perpetrators of violence of this sort are properly punished, and send a clear message that this violence against women is unacceptable in our society.”

Furthermore, pioneering CPS areas, police forces, and leading academics developed new National Operating Models for the investigation of rape and serious sexual offences through Op Soteria. This sees police and prosecutors working more closely together to build stronger cases.

Support from the government for victims and prosecutors includes:

  • Legislation to ensure rapists, and those convicted of the most serious sexual offences, remain in prison for the whole of their custodial term and that they are subject to proper supervision in the community on their release.
  • Offering 24/7 support line for victims of rape and sexual violence, ensuring victims of these crimes always have someone on hand to support them.
  • They are strengthening support for victims through the Victims and Prisoners Bill, including ensuring that police requests for third party materials are necessary and proportionate to an investigation.

The government is also continuing to bolster support services, quadrupling victims funding by 2024/25, up from £41 million in the last 15 years, and using ringfenced funding to increase the number of Independent Sexual Violence and Domestic Abuse Advisors by 300 to over 1,000 – a 43% increase by 2024/5.

It must be noted that while considerable funding has provided a boost to support services, the inflation rate has soared in the last decade.

The Ministry of Justice Press Office have been contacted for the exact funding figures from 2009 and the present day to compare the funding against an inflation rate of 49%, averaging at 2.72% per year.

Until the introduction of the offence of ‘Coercive Control’ in the Serious Crime Act (2015), domestic violence had no specific offence in law, but was considered to be a feature of any number of existing offences, such as those against the person or property. The 2015 Act criminalised coercive and controlling behaviour in an attempt to address the continuous and repeated patterns of violence that tend to define the experiences of victims (Stark Citation2007, Kelly and Westmarland Citation2016)

Eve Tawfick, Editor

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