Activists in the United Kingdom have documented an alarming tenfold rise over the last two decades in what they call the “rough sex” defense. In these cases, a woman—it is always a woman—is found dead and the man accused of killing her alleges that she died during rough but consensual sex. The line of defense has worked: Half of the cases brought over the past fives years have resulted in lesser charges of manslaughter. Now, an activist group going by the name We Can’t Consent to This, along with the MP Harriet Harman, are pushing for a change to UK law meant to reduce the likelihood of lesser charges being brought in cases featuring the “rough sex” defense.

Amid this news, the BBC asked in an article on Wednesday, “What if someone does die in a genuine accident?” It’s a question that has been raised again and again in the UK: How does one tell the difference between murder and, as the press frequently puts it, “a sex game gone wrong”? Such questions might seem especially relevant in the two-thirds of these cases where the defense has alleged that a kinky experiment with “choking” resulted in death by strangulation. Here is the thing, though: In many, if not most, of these cases, the “rough sex” defense appears patently dubious.

We Can’t Consent to This has documented 59 cases of the “rough sex” defense. Among those instances, there are many cases of horrific bodily injury that rationally preclude the possibility of consensual sex: a fractured spine, skull, or ribs. Notably absent in these cases: panicked calls to 911 in hopes of resuscitation. In more than one instance, a man photographed the dead or dying victim. In most cases, there is little to zero evidence that the victims were interested in rough sex or BDSM. Additionally, as pointed out by a We Can’t Consent to This report, “many of the accused men were previously abusive to their partners or had convictions for serious violence.”

In this light, the “rough sex” defense often appears to be nothing more than the desperate machinations of defense attorneys. It is only in the hypothetical and abstract—on the level of the salacious tabloid headlines reading things like, “Killed backpacker... was into choking”—that the “rough sex defense” begins to seem plausible. Two thirds of the women who died in these cases were strangled and many a headline has focused explicitly on the defense’s allegation that a particular victim liked to be “choked” during sex. In the few instances where they can, the defense gestures toward past behavior with partners or memberships to fetish dating sites. In this way, the rough sex defense can do what defense attorneys in rape trials have long done: invoke a woman’s sexual history as evidence against the violence done to her.

Of course, that isn’t to say that it is impossible for a “rough sex” defense to be somewhat legitimate, particular when it comes to strangulation. The reality is that breath play, which involves the restriction of breath and can include strangulation, is dangerous.

In total contrast to the alleged mainstreaming of “choking” during sex, breath play is considered “edge play” within the BDSM community, which is to say: a behavior that falls on a dangerous extreme. Jay Wiseman, author of SM 101: A Realistic Introduction and a member of BDSM community, is known for sounding the alarm about the risks of breath play, calling it “an extremely dangerous type of erotic behavior.” In a lengthy essay on the subject, he wrote that these practices “have a very questionable risk/benefit ratio and that they are both far more unpredictable and far more dangerous than many people understand them to be.” In her 2011 ethnographic study of the San Francisco Bay Area’s BDSM scene, Techniques of Pleasure, Margot Weiss wrote that breath play was “widely prohibited.”

You are unlikely to find that information in reporting on the “rough sex” defense. That’s in part because it isn’t BDSM that has paved the way for the “rough sex” defense in the UK so much as the mainstream popularization of a contextless, ahistorical version of kinky sex. It is kink entirely stripped of the community, safety guidelines, educational systems, and advanced negotiations of consent that characterize “safe, sane, and consensual” BDSM. There is no doubt that ill-informed, contextless “rough sex,” particularly when it comes to breath play, is risky. It’s risky. That is part of what makes the defense effective when it is.

I suspect that another part of what makes the defense sometimes effective is the concern and alienation that some feel around societal change—which tends to get stirred up around discussions of the purported rise in rough or kinky sex. This calls to mind a piece last year in the The Atlantic about a university’s failure to punish a serial rapist on campus. A sexual-assault nurse examiner recalled to a reporter that she had told a police detective about college student’s extensive injuries following a rape and he responded, in her words: “You know, kids are into kinky shit these days.” This perception of generational difference, the sense of “kids these days,” becomes a blinder to the actual facts. In the case of that Atlantic article, this meant the police detective dismissing a victim’s remarkable injuries, including one the nurse examiner had never seen before: “a torn labial frenulum, which connects the inside of the upper lip to the gums.”

Similarly, the “rough sex” defense seems to have a remarkable ability to shut down the consideration of specifics, both on the part of journalists writing sensationalistic “Killed backpacker... into choking”—headlines, and on the part of prosecutor, juror, and judge when it comes to mind-boggling charges, verdicts, and sentencing.

Senior Staff Writer, Jezebel

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