“All’s foul in fetishised violence” is the fifth article in Julie Bindel’s online column for The Critic, “The feminist fix”, which explores feminism’s answer to today’s challenges. The fourth article, on exposing mansplainers, can be read here.

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How do we stop men availing themselves of the so-called “rough sex defence”? Following years of feminist campaigning, it was announced the defence would be scrapped as part of the 2020 Domestic Abuse Bill. You will have heard of the cases where women have died, having sustained the most horrific injuries, only for the perpetrator to be treated leniently because she “consented” to it. The most recent one is that of Sam Pybus, who didn’t even get to trial.

A defendant cannot claim consent to serious injury

During 1996 and 2016 there was a tenfold increase in rough sex claims used by men where women died. Between November 2019 and March 2020, UK courts heard of 15 female victims where rough sex claims were made. This defence is also used in other countries. Just look at the shocking case of Grace Millane, a British tourist to New Zealand who was killed by Jesse Kempson. Kempson claimed Millane consented to being strangled by him. Unbeknownst to Millane, eight months before she died, Kempson had brutally raped another British tourist.

The law in England and Wales is clear: according to a case known as R v Brown, a defendant should not be able to claim consent to serious injury — but nevertheless men use this in cases where women die in certain circumstances.

Effectively, a man could decide to brutally rape a woman who he later claims was a willing sexual partner, kill her during the rape by using additional violence, and say that she had consented to all of it. In other words, she consented to being raped, beaten and ultimately killed.

How do we prevent violent men from taking advantage of this loophole?

Proponents of sadomasochism are about as typical as a vegan dog

First, we need to get the message across loud and clear that women do not consent to being beaten, choked and battered to death. It really is irrelevant if one or two female fans of sadomasochistic practices pop up every now and again to say that they love pain and humiliation during sex; we do not and should not create policy and legislation based on a tiny minority. These women are often wheeled out and used as a smokescreen for men’s abusive and even deadly behaviour. In the same way that the myth of the “happy hooker” is used to mask the fact that millions of women are coerced and abused in systems of prostitution worldwide, the proponents of sadomasochism are about as typical as a vegan dog.

The rough sex defence can result in an acquittal for murder and a conviction of the lesser crime of manslaughter. In nonfatal cases it can result in a lighter sentence. In some cases the death of a woman is not even treated as a crime.

All the man has to say is “yes”, there was violence that led to her death, but if he claims it was in the context of rough sex and that she consented, often juries do not convict of murder.

Where a woman survives, and the perpetrator is on trial for violent offences, her testimony can be challenged, ignored or dismissed. The feminist campaign group We Can’t Consent to This have spoken to women who have survived such violent acts, some of whom said they had not consented in any way to “rough sex”.

Let’s have a look at the kind of violence involved in cases where men have used a rough sex defence and been acquitted: electrocution, strangulation and asphyxiation, slapping, beating, punching and kicking, shotgun wounds and waterboarding — does any of that sound fun?

The defence, that women “consent” to violence, has also been used in cases of sexual assault. This is nothing short of disgraceful. It is exactly the same as women being seen as complicit in their own abuse because they wear revealing clothing, or drink too much. It is the most disgraceful victim blaming campaign imaginable.

Fifty Shades of Grey gives the impression that women enjoy pain

The law must be clarified as to exactly what an individual can legally consent to. We need to go back to the legislators and show the harm this loophole has caused. The family is devastated at the death of a loved one, when they cannot even claim victim status because of course she was asking for it.

Then there is the issue of the normalisation of violence against women. Much pornography, instantly and freely available, shows women being brutalised as part of sex acts. Men are masturbating to the most terrible depictions of violence against women. Boys are learning that sex and violence go together hand-in-hand. They are being brainwashed into believing that women love being punched, choked, urinated on and beaten to a pulp during sex.

Changing the law is crucial and implementing those laws so that men such as Sam Pybus cannot claim a get-out-of-jail-free card, but so is changing culture and challenging misogyny. There has never been a case of a woman strangling or beating a man to death during sex and using such a defence. Violence against women has become indistinguishable from the way women are treated in general. Books such as Fifty Shades Of Grey, despite being badly written fiction, give the impression that women enjoy pain and humiliation and get a sexual thrill from being roughed up in bed.

Men should never be able to claim consent to actual bodily harm, let alone murder. I do not care if a flurry of blue fringed polyamorous Queer Isis suddenly pop up and start shouting “kink shaming!” at me. If they want to dress up as Nazis, play out sick fantasies and call it BDSM, perhaps they should have a think as to why that floats their boat? I am uninterested in protecting a group of narcissistic fetishists when this leads to men having easy access to defences for violence against women.

The feminist fix to this problem is to stigmatise and criminalise the use of any violence during sexual encounters. If this curtails the “freedom” of a handful of sadists that get their kicks from inflicting pain, so be it. Personally, I would put the lives of women above their sexual gratification.

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Julie Bindel’s latest book, Feminism for Women: The Real Route to Liberation (Constable, Robinson), was published on 2 September 2021.