ABSTRACT
In this chapter my intention is to explore the way in which the narratives of sexual libido and desire have informed the consent ‘defence’ in cases of non-fatal and fatal assault and more recently especially where strangulation is the method of violence used. The criminal law has for a long time established that consent, for whatever reason, including circumstances of private sexual conduct, cannot provide a defence to assault or murder. However, there are cases where the defendant who is charged with murder alleges that the deceased ‘victim’ consented to the activity that formed part of the sexual encounter that led to death and in consequence he should not be criminally liable for murder. The criminal law has permitted exceptions to the general rule that consent cannot be a defence to physical harm. These exceptions have been driven by social policy but are restricted to, for example, particular contact sports, including boxing. 2
The question that forms the discussion in this chapter is the place, if any, of consent as a defence or in mitigation in regulating and punishing harms that follow sexual acts between two or more allegedly consenting parties when followed by non-fatal or fatal harm. In this chapter I explore the manipulation by the defendant of a sexual consent narrative in assault and fatal assault and especially where women who die at the hands of men are strangled and asphyxiated. While bondage, domination, sadism and masochism (BDSM) contenders argue that there should be a legal space for sexual violence in the sexual encounter 3 and that partners who engage in sexual acts, including erotic asphyxia, do so from true consent and choice, the concern is that the defence contention that the victim/deceased consented to the violent
tive is being appropriated by defendants to disguise what is essentially cruel and misogynist conduct as a strategy to manipulate trial and sentencing outcomes. Whilst there are instances where single men 4 have died following auto-erotic asphyxia, the death of women in heterosexual relationships is particularly worrying because of the prevalence of strangulation as a specific form of violence against women in both non-fatal and fatal assault.
