Resurrecting “She Asked for It”: The Rough Sex Defence in Canada

Authors

  • Elizabeth Sheehy
  • Isabel Grant
  • Lise Gotell

DOI:

https://doi.org/10.29173/alr2732

Abstract

Internationally, the “rough sex defence” appears to be on the rise. Used to suggest that women enjoy violence as part of “sex play,” it invites judges and jurors to find either consent to acts causing bodily harm or an honest but mistaken belief in consent. Our review of the Canadian case law from 1988–2021 examines how courts approach this defence. We found that the defence is gendered, with only men as perpetrators and overwhelmingly women on the receiving end. We explore themes from the cases including the role of pornography, the trivialization of bodily harm, the mischaracterization of strangulation, and how consent to some sexual activity undermines women’s credibility. We conclude that consent should be barred as a defence to causing bodily harm unless that harm was unforeseeable when inflicted.

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Published

2023-03-08

Issue

Vol 60, No 3

Section

Articles

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