Abstract
I analyse the way ‘rough sex’, including ‘choking’, was normalised during the 2019 trial of Jesse Kempson for the murder of Grace Millane – and portrayed as a modern form of mutual and egalitarian sexual exploration, particularly for young people. While the so-called ‘rough sex defence’ has been widely critiqued for the way it operates in the criminal justice system to minimise violence against women and blame victims for their own murder or assault, I focus here on the wider social implications of such legal arguments. I identify how the trial was infused with a ‘modern mythology of everyday kink’ discourse, which I critically deconstruct through the lens of three women's stories about unwanted or unenjoyed ‘rough sex’. I show that this discourse obscures and enables concerning new patterns of hurtful, exploitative and violent acts against women and girls that are becoming normalised and legitimated in the name of (rough) sex.
They weren’t doing anything dangerous and hopefully you may have had some assistance from Professor Smith on that point because the defence says to you what they were doing, the placing of pressure on each other's neck, is now just a part of having sex for some people. It's not a dangerous act and you may think that these young people were not thinking of it as a dangerous act. They were just thinking of it as part of having sex. (Closing address of Ian Brookie, for the Defence, in the murder trial of Jesse Kempson 1 )
In November 2019, a jury at the Auckland High Court in Aotearoa New Zealand found Jesse Kempson guilty of the murder of Grace Millane. One year prior, Millane had met Kempson through Tinder and spent the evening with him in the city. After going back to his inner city apartment, Kempson strangled Grace Millane to death on the eve or early morning of her 22nd birthday. News media stories about the disturbing circumstances and events surrounding Grace Millane's murder were prominent over the course of the trial – both in Aotearoa New Zealand and in her homeland, the United Kingdom. Media reports also documented witness accounts, forensic details and the drama of the courtroom, including arguments by the Crown and the defence. In the process, the trial brought a public spotlight onto the subject of ‘rough sex’, as well as many facets of gendered sexual politics that animated both the reported circumstances of the murder as well as its depiction in the courtroom. Looming large in the background was a story about what is normal (and acceptable) in sex between men and women in contemporary times.
In this article, I deconstruct the social story that infused this criminal trial – the background story about ‘sex these days’ or, more particularly, the story about contemporary ‘rough sex’ between young men and women. I will discuss how a particular construct of ‘rough sex’ – as benign, egalitarian and modern – was produced and normalised during this high profile murder trial. I will counterpose this portrayal with stories about three young New Zealand women's experiences that highlight the exploitative and violent underbelly of so-called rough sex between men and women. I argue that we need to be wary about the term and the concept of ‘rough sex’ both inside and outside of the courtroom.
Much has been written about this trial and, as I contribute to this body of commentary, I first want to recognise the real human loss and suffering that led to the trial, and which was likely exacerbated through the trial and the associated media and public scrutiny. I acknowledge Grace Millane and pay respect to her memory and to her family and friends. I also honour the memory and experience of the many other women killed, assaulted and sexually violated by men claiming their actions were ‘just’ ‘rough sex’.
Murder Trial of Jesse Kempson, the ‘Rough Sex Defence’, Broader Social Implications
In the trial of Jesse Kempson, his defence lawyers argued that Grace Millane's death ‘occurred as an accident as a result of sexual activities that were initiated and encouraged by Ms Millane’ (Defence closing: 13); ‘a tragic, unintended, unforeseen accident’ (Defence Closing: 48). In this way, they used what is referred to as the ‘rough sex defence’, portraying her death as ‘consensual sex “gone wrong”’ (e.g., Bows and Herring, 2020). 2 While there seemed to be no forensic evidence that could prove or disprove that any sexual interaction took place inside Kempson's apartment, the defendant claimed that not only did Grace Millane consent to ‘rough sex’, but she ‘led’ the whole sexual interaction; that ‘she was encouraging him to do this [place pressure on her neck] and to apply more force, because this is what she liked’ (Defence closing: 11).
While the ‘rough sex defence’ is not ‘an actual defence in the legal sense’, as Canadian legal researcher Suzanne Zaccour (2021: 347) notes, the term refers to the defence claim that a victim of alleged murder or sexual violation consented to the violent acts that were done to her. Elizabeth Sheehy et al. (2023) observed that while prescient notes of concern were being raised over thirty years ago by George Buzash (1989), who discussed the use of the ‘“rough sex” defence’ in three US murder cases, research from the UK and Canada has found it has become increasingly common in trials for the murder and (some kinds of) sexual assault of women (Sheehy et al., 2023; We Can’t Consent To This, 2020b). According to Susan Edwards (2020: 297), ‘“rough sex” excuses, once consigned to the annals of sexual psychopathy, are now becoming the defence norm in trials for murder and non-fatal assault’ when men kill intimate partners. Recent critiques by activists (We Can’t Consent To This, n.d., 2020a) and legal and sociolegal scholars (e.g., Bows and Herring, 2020; Edwards, 2020; Sheehy et al., 2023; Tolmie, 2021; Yardley, 2021) have detailed the regressive effects of this profoundly gendered defence. As Sheehy et al. (2023) found, based on their analysis of 93 Canadian sexual assault, assault and homicide cases in which a ‘rough sex defence’ was used, all of the defendants were men, and the overwhelming majority of victims were female.
Beyond immediate concerns about care and justice in particular legal cases, the so-called rough sex defence carries broader social messages and significance. Its use is not always successful, as it wasn’t in the trial of Jesse Kempson. But the fact that courts entertain the idea that it is possible for a woman to have consented to acts that caused her death or that a woman might have consented to injurious violent sex – or physical assault in the name of sex – even though she says she did not, sends a chilling reminder of the power and persistence of the ‘masculine point of view’ (Gavey, 2019b) underlying dominant social attitudes and legal frameworks for dealing with gendered violence and abuse. Accordingly, my focus sits adjacent to the important critiques of the use of the ‘rough sex defence’ in relation to justice in criminal trials for men's violence against women. Focusing on the trial of Jesse Kempson for the murder of Grace Millane, I explore how a broader interpretative framework was fabricated to normalise the sociosexual logic of the ‘rough sex defence’. This includes the broader discourses of gender and sexuality that are woven into courtroom narratives, including in somewhat surprising ways. In this case, it includes the way academic expertise was mobilised, drawing on what I call the modern mythology of everyday kink. This was done to normalise ‘rough sex’ in a way that supported the defence arguments about the nature and context of the fatal violence. At the same time, it worked to reinforce a deceptive narrative about young people and ‘rough sex’ that I argue is more widely harmful through its portrayal of a misleading binary distinction between ‘rough sex’ and sexual violence. It is important to emphasise, therefore, that while I focus in some detail on the trial itself in the first part of my analysis, I am interested primarily in how these broader social stories operate in this legal space, with concern for the broader social implications (particularly when the trial is in the public gaze, as it was in this case).
My argument in this article knits together two distinct bodies of data and analytic processes, focusing first on the trial itself and then drawing from interview-based social research.
Methodology Narrative
In the first part of the analysis, I use a discursive approach to examine lawyers’ and witnesses’ statements and questions during the trial, when speaking about sexual behaviour purportedly relevant to Grace Millane's murder. I aimed to identify and describe the dominant interpretive framework(s) used in the trial for this purpose. My interest in this case was sparked when I was approached for comment by a journalist prior to the start of the trial. I subsequently attended several days of the trial, in the public gallery at the Auckland High Court. My observations and notes written at the time shaped questions that I then decided to pursue more formally. I obtained ethics approval from the University of Auckland Human Participants Ethics Committee and was granted permission from the trial judge, Hon Justice Moore, to access the full Court transcript, as well as the Crown and defence closing arguments, for research purposes. The analysis I present here draws directly on these court records as data, guided by my observations and reflections at the time of the trial. All direct quotes from the Court transcript are italicised; page numbers are provided where possible except when only singular words or brief phrases are quoted.
Given the sensitive nature of the issues covered in the trial, I faced important ethical considerations (as well as some legal limits) in using this material. The overarching principle I followed was to avoid discussion of any unnecessary details that might subject Grace Millane to further gratuitous curiosity and to avoid the stories of vulnerable witnesses giving evidence about their own experiences of violence from the defendant. With two minor exceptions (pages 11-12 and note 8), my analytic focus is instead on the talk of the professional actors (lawyers and an expert witness); material that has already been widely reported in the media. Nevertheless, I am mindful that writing about the trial does perpetuate attention on Grace Millane, who of course never had the opportunity to consent to such attention. I approach this task guided by an ethic of care and respect.
In the second part of the analysis, I present three young women's stories that highlight how the experience of unwanted ‘rough sex’ can unfold in ways that depart sharply from the idealised portrayal of it in the trial. These stories were selected from a wider ongoing interview-based study of women's experiences of unwanted and/or unenjoyed ‘rough sex’ with men. Participants were recruited for this wider study mostly via an online survey of a convenience sample of 567 people from the general New Zealand population, as well as through flyers placed around universities and in public places. Both the survey and the interview study were designed in response to the intense media attention on the Kempson trial and resulting public attention to the phenomena of ‘rough sex’ and related issues. Both had ethics approval from the University of Auckland Human Participants Ethics Committee. The survey sought people's views and experiences of rough sex, including exploring what the term meant and how the idea of ‘rough sex’ is used in relation to people's sexual experiences (Gavey and Brewster, 2024). Three-quarters of respondents reported having experienced ‘rough sex’; and of those, 54% of women, 17% of men and 52% of gender-diverse people reported having experienced unwanted or unenjoyed ‘rough sex’. The interview study has a narrower focus on women's unwanted experiences and seeks to understand the dynamics of men's aggression towards women under the rubric of ‘rough sex’.
In the 18 interviews conducted so far, women described diverse experiences. 3 Their unwanted or unenjoyed experiences of ‘rough sex’, as they defined it, fell loosely within four general patterns: (1) men's aggressive acts in the context where consent may have been given (due to the coercive pressure of norms and/or curiosity), (2) men's aggressive and violent acts committed nonconsensually within an otherwise consensual sexual interaction within a relationship, (3) men's aggressive and violent acts committed nonconsensually as part of an exploitative and/or abusive sexual interaction within casual sexual encounters or intimate relationships, and (4) violent sexual assaults, committed by strangers, acquaintances or intimate partners. The boundaries between these patterns were sometimes blurry and they were not mutually exclusive. In some cases, women later came to see experiences of ‘rough sex’ that men had subjected them to as if it was just a style of sex (for instance, in the second and third patterns) as sexual assault or rape. Many women described more than one experience of different kinds. The experiences they elaborated on resonated strongly with the numerous brief descriptions of unwanted and coerced ‘rough sex’ that many of the women survey respondents also described.
For this article, I selected three women's stories to present in detail that help to provide counter-knowledge about the sort of sexual interactions imagined through the discursive construction of ‘rough sex’ I identified through the trial (‘the modern mythology of everyday kink’, see Part 1 of the analysis below). Twelve of the women I interviewed described at least one experience related to the first three patterns, that is, where aggression and violence were framed within a discourse of ‘rough sex’ as sex, rather than as unambiguous acts of sexual assault (which is not to say that they were not assault in some cases). The criteria I used to select the stories to focus on here were that (1) they were described within detailed narratives (in some other cases, where women had had multiple experiences, including violent rapes, these kinds of experiences were not discussed in the same detail), (2) they were told by young women, and (3) that together they illuminate key themes representative of the issues arising across the wider set of interviews. While women's stories about unambiguous violent assault (the fourth pattern) are extremely important in relation to a wider critical analysis of ‘rough sex discourse’, I do not present such stories here as men's actions were described primarily or exclusively as violence rather than sex.
In making sense of these women's stories I used critical realist and discursive lenses to illuminate both the nature of their experiences and to show how they are shaped in relation to heteronormative gender dynamics and broader discursive factors.
In Part 1 of the analysis, below, I begin by examining how ‘the object of rough sex’ was constructed in the trial, through a particular discourse of the modern mythology of everyday kink.
Part 1: The Modern Mythology of Everyday Kink Within the Jesse Kempson Trial
I start with the premise that ‘rough sex’ is one of the central ‘objects’ at the heart of the trial. That is, either the sexually inspired actions that led to the accidental death of Ms Millane (according to the defence) or a field of sex that should be distinguished from Mr Kempson's murderous violence (according to the Crown). The term ‘rough sex’ refers to an imprecise and contested set of behaviours, actions and interactions (Gavey and Brewster, 2024). It often includes strangulation – commonly, albeit inaccurately (e.g., see Busby, 2012; Herbenick et al., 2023), referred to as ‘choking’ 4 – the action Mr Kempson used to cause Ms Millane's death. In the trial, a discordant cluster of terms was used to refer directly or indirectly to this notion of ‘rough sex’. This included various umbrella terms in addition to ‘rough sex’, such as, ‘a bit of rough sex’, ‘more violent sex’, ‘BDSM’, ‘BDSM lite’, ‘minor form of BDSM’, ‘what's generically, broadly described as BDSM activity’ (Crown closing: 47), ‘kink’, ‘kinky’ and ‘elements of kink’. A range of terms was also used to refer to particular ‘rough sex’ practices, such as ‘choking’, ‘a bit of choking’, ‘an element of choking’, ‘erotic asphyxiation’, ‘breath play’, ‘edge play’, ‘pressure to the neck’, ‘pressure on the throat’, ‘strangulation’, ‘domination and strangulation’, ‘restraint’, ‘biting’, ‘slapping’, ‘a bit of spanking’, as well as dynamics like ‘power play’. A range of terms was also used to refer to people who engage in ‘rough sex’, including ‘practitioners’, ‘full-time practitioner[s]’, ‘24/seven lifestyles’, ‘community member[s]’, ‘dominants’, ‘submissives’, ‘dabblers’, ‘amateurs’, ‘hobbyists’ and ‘novice[s]’. Lawyers and witnesses used these terms to distinguish the extent to which people take up practices on the BDSM ‘spectrum’, although not always with precision or consistency.
Overall, this eclectic vocabulary enabled conceptual murkiness – particularly in relation to what ‘rough sex’ is and its relationship to ‘BDSM’ (which I will discuss further later). Sometimes they were implied to be synonymous and sometimes they were distinguished, but not consistently. In examining how this notion of ‘rough sex’ was constructed through the trial, I am asking: How did the way it was talked about tell us what ‘rough sex’ is, what it means and how it exists within the contemporary sociosexual landscape (particularly for young people)?
The Role of Expert Evidence
Scholars have pointed to the role of ignorance and misunderstandings in providing the groundwork for ‘rough sex defences’, in some cases suggesting a role for expert evidence to help better contextualise defence claims about a victim's sexual behaviour. For example, such evidence could explain the nature of strangulation-related injuries and risks as well as the importance of consent and safety embedded in the ethos of BDSM practice (Busby, 2012; Sheehy et al., 2023; Yardley, 2021). In the Kempson trial, expert witnesses were called – to speak about anatomical and physiological aspects of strangulation, the interpretation of signs of injury and related matters (which I won’t discuss here) as well as sexual norms and BDSM. Professor Clarissa Smith, a ‘sexual cultures’ expert, appeared by video link from Gateshead in the UK to give evidence about contemporary sexual mores, BDSM in general, as well as ‘erotic asphyxiation’, and women's interest in BDSM. However, contrary to the hope that experts may be able to counter harmful myths, Smith's evidence (which was led by the defence) served as a touchstone in the fabrication of the modern mythology of everyday kink within the trial – which the defence used to support their claim that Grace Millane's death was accidental.
There were five key messages in Smith's expert evidence, and it is these elements that I suggest form a particular discourse about rough sex – ‘the modern mythology of everyday kink’ – which acted as a filter for speaking about and making sense of ‘rough sex’ in the trial 5 . These are the claims (not always made directly) that (1) sexual culture has changed in the last 20 years, in ways that would have previously been unimaginable; (2) interest and exploration of the broad spectrum of ‘kink’ is common and normal, especially among young people; (3) BDSM – and by (erroneous) conflation everyday kink – is about pleasure and not harm; (4) BDSM is a gender-equal practice, with women and men both just as likely to be dominant (or submissive); and (5) young women are (now) sexually agentic. Absent from this expert evidence was reference to the large body of research that highlights ongoing gendered power dynamics associated with sexual behaviour between men and women, including for young people.
Professor Smith, who explained that she was interested in changing sexual mores and sexual ethics, claimed that over the past 20 years sex has become more important for young people. She suggested: it is the big story of this contemporary moment ideas around pleasure, community of being you know exploring and taking part in sex, creating exciting forms of intimacy, are all part of what it means to be taking care of oneself and also being part of a youthful form of lifestyle. (569) women making choices for themselves, being autonomous, responding with authenticity, being in charge of their sexuality. (570) [now] young women feel much more free to actually articulate what it is that they want and what they don’t want. (578)
BDSM was the focus of many of the questions asked of Professor Smith during the trial. According to Weiss (2015), BDSM refers to ‘the consensual exchange of power for pleasure’. It has traditionally been associated with niche communities that people intentionally opt into and self-identify with. While the politics and ethics of BDSM are still subject to debate (see e.g., Garcia, 2022), BDSM itself has quite quickly moved from being the target of pathologisation and stigma towards increasing legitimacy (e.g., Kleinplatz and Diamond, 2014). While the limits of acceptable practice are not universally agreed within BDSM communities – particularly in terms of what risks are seen as justifiable (see Downing, 2007) – most writers emphasise that explicit communication and consent between parties are central to the practice of BDSM. At the same time, it is widely recognised that despite these explicit ideals, consent can be more complicated in practice than in theory, and consent violations, exploitation and abuse can and do take place among those who practice BDSM (e.g., Barker, 2013a, 2013b; Beres and MacDonald, 2015; Dunkley and Brotto, 2020; Fanghanel, 2020; Rosten, 2020; Weiss, 2011), just as they do within the broader sphere of sexual relations (Gavey and Senn, 2014).
Professor Smith talked about the importance of consent and emphasised that BDSM is about giving and receiving pleasure – ‘the intention is not’, she said, ‘to do anything damaging’ (570). However, the way Professor Smith's evidence was led in the trial resulted in an unresolved conflation between BDSM, as such, and what we might think of as a broad overlapping umbrella category of so-called ‘rough sex‘ (or, perhaps, the practice of those who ‘dabble in elements of kink’, as Smith put it at one point [573]). Smith was asked numerous questions about BDSM-proper that produced lengthy detailed answers – even though there was no evidence that Kempson and Millane's brief encounter had any features of a BDSM relationship. Completely lacking in Kempson's narrative was any suggestion that he identified as a practitioner of BDSM, that he understood what Smith referred to as the ‘rules and obligations within partnerships’ (572), or that he and Ms Millane had explicitly negotiated and agreed on how to safely practice a potentially risky act like ‘breath play’, for example. Indeed, as the defence noted of Mr Kempson, ‘This is not someone who's experienced, this is not someone who's plugged into the BDSM world’ (Defence closing: 16). Yet this detailed focus on BDSM in Smith's evidence allowed the impression that all the elements of mutuality, gender equality, pleasure and safety, which she described (no doubt somewhat optimistically) as characterising BDSM, would apply to this shadow field of ‘rough sex’ or ‘everyday kink’.
‘Rough sex’, however, is not regulated by communities of practice that emphasise communication, consent, caution and careful negotiation about what is going to take place – all of which are surely essential ingredients if potentially harmful acts of physical force towards another person can be defended in the name of BDSM (see, for example, Dunkley and Brotto, 2020; Williams et al., 2014). Within ‘rough sex’, physical aggression, acts of dominance, and seemingly denigrating acts are woven into sexual scripts that can be enacted by people who may know and care little or nothing about the ethos and ethical frameworks emphasised within BDSM communities. Effectively, this means that, in contrast to BDSM – which has been practised within communities that do at least seriously engage with ethics (e.g., Williams et al., 2014) (albeit imperfectly as noted above) – ‘rough sex’ exists in an ethical vacuum. 6
Smith acknowledged that within popular cultural discussions of practices like ‘breath play’, ‘there isn’t enough data to engage safely’ (575), and that ‘someone who's dabbling’ may not have sufficient information about ‘whether or not it's safe or how to do it safely’ (576). Nevertheless, Smith's references to young people's ‘dabbling’ and young women's agency gave the impression that any young woman's participation in ‘rough sex’ would be driven by her desire and a reasonable expectation of pleasure. She said, ‘amongst younger women we are seeing a greater sense of they’re owning their own sexuality of being prepared to actually say what they would like’ (577). Paradoxically (because elsewhere dabbling in kink was portrayed as common), Smith mobilised stigma in a way that arguably would reinforce the impression that if a woman was engaging in such practices it would (only) be because she was driven by internal authentic desires: ‘partly because of the stigma around engaging in non-normative sexual activities means that actually people are quite reluctant to talk about their pleasures and practices that other people might view as problematic’ (574–5). Overall, through the trial, a precarious binary was constructed between choking and strangulation, with it being problematically implied that if a woman was being choked during ‘rough sex’, as opposed to being strangled during a violent attack, it was because she wanted it and liked it.
As the defence said in their closing, referring to Mr Kempson choking another woman he met on Tinder, with her consent, ‘she brought it up and asked him to do it and they did it, there's no safe words, none of that’ (16). However, the essential point that this suggests they were operating outside of the ethical guard rails for BDSM – and therefore all the detailed evidence that Professor Smith provided about BDSM was arguably entirely irrelevant and therefore misleading – was never made. Drawing on this expert evidence, as the defence said in their closing, with reference to choking: ‘It's just something that people are doing as part of the leisure activity of sex’ (16).
The portrayal of rough sex as normal or unremarkable was also drawn on by the Crown in their argument. While the defence drew on this portrayal to set the stage for arguing that the murder was a tragic accident arising from consensual sex; once this stage was set, the Crown was arguably required – or strategically chose – to play within the parameters of this argument. They drew on the modern mythology of everyday kink to emphasise that Kempson's actions of strangling Ms Millane to death were part of a different category of behaviour than that of ‘rough sex’ or BDSM, in a way that portrayed those categories as inherently unproblematic: It's not safe sex play that killed Grace Millane. It's strangulation. They’re entirely different things, entirely different things. (Crown closing: 49)
In this sense, both the defence and the Crown drew on the modern mythology of everyday kink. ‘So what?’ the Crown asked, if Grace Millane ‘had an interest… [in] that sort of breath play, a bit of choking’ (20). Later, they said, her interests were ‘really safe, really safe’ (50). ‘Safe sex play’ and fatal strangulation are of course completely different things and in the context of a murder trial this is a potent distinction. But outside the specific trial context this strict binary distinction obscures a broad spectrum of men's sexual mistreatment and violence against women through the logic and mechanisms of ‘rough sex’ – as I will demonstrate in Part 2 of my analysis.
A Modern Mythology of Everyday Kink – Using the Cloak of ‘Sex Positivity’ to Shield Men's Sexual Exploitation and Violence Against Women
One of the defining features of the defence case in this trial was its use of a postfeminist double manoeuvre in its portrayal of gender and modern sexuality for young people. On the one hand, the defence lawyers offered a laissez-faire narrative about the normality of ‘rough sex’ practices like ‘choking’ for young people – which tapped into a ‘sex positive’ cultural sensibility that eschews moral judgement, particularly against young women engaging in such practices – and ostensibly rejected victim-blaming. On the other hand, through telling a detailed story about Grace Millane's sexual history, they played to the sociocultural substrate of the sexual double standard – providing material for prejudicial judgements about her character and victim-blaming assessments of her reported sexual behaviour. The defence made repeated statements that were, on the face of it, open-minded, non-judgemental and ‘sex-positive’. For example: As we know, we have young hobbyists now who are moving into these types of practices and that's no criticism. That's fine, people can do whatever they want. (Defence closing: 14) So, an interest, fair enough, fine, anyone is allowed to have an interest in that [BDSM], there's no criticism about that. (Defence closing: 15) the evidence we have heard about Ms Millane is not intended in any way to suggest that she is in some way to blame for what has happened or that in any way her sexual likes or dislikes are wrong or bad or not normal but… (Defence closing: 11)
However, through presenting and emphasising, arguably irrelevant, attention to Ms Millane's prior consensual engagement in some ‘rough sex’ practices (with her former boyfriend) and apparent interest in BDSM, they attempted to have their (‘kink positive’) cake and eat it at the same time – the latter by allowing underlying prejudicial gendered tropes about sexually agentic women to do their silent discrediting work without needing to be spoken. As the Crown observed in their closing address, in questioning the relevance of Grace Millane's prior sexual experiences, given the very limited knowledge Kempson actually had of them, a key reason for introducing that evidence would be to open the door to the kind of victim-blaming judgement that the defence claimed to reject: yet what have we heard [about ‘any previous interest of Grace Millane's’] and why have we heard it? And we’ve been told we’re not being told it to reflect on Grace Millane. Oh no, not that, no. But isn’t there a grave risk that that might trigger some bias in us, hopefully not, in a young woman who happens to have sexual interests, diminish her because of that. (Crown closing: 24)
7
Not only did the defence craft an impression of Ms Millane that allowed them to suggest it would be ‘normal’ for her to be interested in ‘rough sex’ with Mr Kempson (see Zaccour, 2021), 8 but as I have discussed above, they also emphasised a more wide-reaching claim about the ‘normality’ of ‘rough sex’ for young people in general.
Social Science Research on New Norms Relating to ‘Rough Sex’
There is evidence to support the claim that ‘rough sex’ is becoming a ‘normal’ part of contemporary sexual repertoires – in the sense that it is not unusual. Social science research on the prevalence and frequency of various sexual practices suggests that some version of ‘rough sex’ is becoming relatively common (e.g., Herbenick et al., 2021, 2023; Vogels and Sullivan, 2019). The research is in its infancy, however, and it raises as many questions as it provides answers – a point leading researcher Debby Herbenick and colleagues frequently allude to (see also, Gavey and Brewster, 2024). Given how rapidly norms appear to be shifting (e.g., see Herbenick et al., 2021, 2022), gaining a robust understanding of what is going on and what it means is not easy. In 2020, Herbenick et al. (2021) surveyed students at a large US university. Of those who had ‘a current sexual or romantic partner’ they had been with for at least three months (N = 1795), nearly 80% had ‘engaged in rough sex with them’. However, this figure included 29.4% who engaged in it rarely and 36.9% who engaged in it sometimes, so the proportion of respondents who had ‘rough sex’ ‘often’ was just 13.1% (roughly the same for women and for men, although this was considerably higher for the relatively small number of trans* and nonbinary participants). In looking carefully at these kinds of data, it is also important to note that ‘rough sex’ signifies different things to different people (Gavey and Brewster, 2024). Participants in Herbenick et al.'s (2021) study endorsed a wide range of behaviours as ‘rough sex’, often associating it with ‘choking’, ‘hair pulling’ and ‘spanking’. But no behaviours were regarded as ‘rough sex’ by all participants, and some might look very different depending on context and how an act was performed. In some circumstances some of these could be part of a more conventional sexual script (e.g., ‘hard thrusting’, ‘throwing someone onto a bed’, ‘spanking’). Other behaviours, however, included acts of sexual assault (‘making someone have sex’) and acts that Herbenick and her colleagues (2019) have previously found to be associated with recipient fear (e.g., ‘being pinned down’, ‘slapping’, ‘punching’, ‘choking’).
Herbenick et al.'s (2023: 1065) analysis of the prevalence of choking/strangulation during sex, drawing on data from a different selection of respondents from this same survey, presents a more confronting view of the place of ‘rough sex’ within US young people's sexual experiences. Looking specifically of the experiences of women and men who had ever been sexually active and whose most recent experience was consensual (N = 4106), they found that 33.0% of women and 7.3% of men ‘reported having been choked’ and 33.8% of men and 5.9% of women ‘reported choking their partner’ during their most recent experience of penile-vaginal intercourse. In their subsequent 2021 survey, the researchers asked participants who reported having been choked during sex if it was consensual. While the majority said it was, there were differences according to gender, and nearly a quarter of women said it was not always consensual (Herbenick et al., 2022). It is difficult to know what these data mean, however, when we usually implicitly treat consent in a binary fashion, as something that is either present or not. Other research shows that when asked if an uninvited and unwanted, and even hurtful, sexual experience was consensual, women will sometimes say it was (e.g., Faustino and Gavey, 2024). As Herbenick et al. (2022: 3133) noted of their findings ‘some experiences of consensual choking [may] reflect sexual compliance and may have been unexpected or unpleasurable but still accepted by the person who was choked’ (my emphasis). In the Kempson trial, a young man, called as a witness to speak about his experience with Ms Millane, told the courtroom that it was his ‘common practice’ to ‘put my hand around a girl's neck’ – without any prior discussion or seeking their permission – ‘because girls usually enjoy it’ (596, 603). (He did not recall doing this to Ms Millane.) I will discuss this kind of dynamic in more detail below.
Part 2: ‘Safe Sex Play’ Versus Strangulation: Are They Always ‘Entirely Different Things’ 9
In this part of the analysis, I juxtapose the modern mythology of everyday kink, as described above, with three women's stories about unwanted and coerced experiences of ‘rough sex’. My purpose here is to show how, in contrast to the utopian sexual landscape portrayed through the modern mythology of everyday kink, young women's everyday experiences of ‘rough sex’ with men may too often involve sexual partners acting selfishly, apparently assuming the right to pursue their own sexual interests and disregard the wants and wellbeing of their partner.
Across the wider interviews I have conducted, it was clear that a ‘discourse of rough sex’ could provide a sexual schema for normalising a set of possibilities that can fuel men's sexual coercion, exploitation and violation of women – in ways that introduce acts of physical violence. As noted above, the women's stories I discuss here illustrate different strands of experiences of unwanted or unenjoyed ‘rough sex’, which all have in common young women's male sexual partners acting physically aggressively towards them, ostensibly in the name of sex. None of these women regarded these experiences as sexual assault at the time (although two also described other experiences of sexual assault). All three of the women described these men's apparent selfish pursuit of pleasure (or power and dominance) in ways that were not attuned to their pleasure or their feelings more generally, and, in two women's cases, did not involve their consent. Two referred to not being able to breathe when their male sexual partner choked them and feeling ‘very vulnerable’ or ‘scared’. Their stories illustrate three key themes: traditional gendered power dynamics that shape men's denigrating and abusive behaviour towards women and girls under the guise of sex, the coercive power of the normalisation of ‘rough sex’ and the fragility of the concept of consent as a marker for ethical rough sex (see also Faustino and Gavey, 2022, 2024).
Gendered Power Dynamics – and the Mistreatment of Women and Girls
Michaela
Michaela is a Pākehā woman who was 20 years old when I interviewed her. She described sexual experiences with several different men, through Tinder hook-ups, as well as in relationships. Like some of the other women I spoke to, her experiences of ‘rough sex’ existed alongside a wide range of coercive and abusive experiences, including two of forced unwanted sex by different men. Michaela's story represents how routinely sex with men can be associated with exploitation and aggression for some young women. She burst out laughing when I asked if any of her sexual encounters with men were positive experiences: no, actually I don’t think I can think of one that was positive. I don’t think- it sounds really sad but I don’t think I had a positive sexual encounter with a guy until I got into my first relationship when I was 18. So when- my first year of uni in 2019 yeah that was my first positive sexual experience (NG: and you had had quite a few before) Yeah and before then I’d slept with probably like 20 people (NG: yeah) So that's like really (NG: yeah) sad [laughs] I can speak on behalf of my friends as well when I say this that most guys I guess, just especially from dating apps (NG: mmm) they just, use you for sex and that's kind of it and they just afterwards are like, OK cool you’ve done your job now never going to speak to you again, yeah, you definitely feel like (NG: mmm) a piece of meat [laughs] Yeah, that's pretty much what all of them were like.
Michaela described most of her sexual experiences as rough and coercive – ‘most males [are] very forceful like would hold you down and physically restrain you, um didn’t take no for an answer’. Not only was she held down, and vaginally penetrated when she didn’t want to be, but she was regularly choked, and some men forced her head onto their penises. Referring to one man who kept wanting her to give him ‘blow jobs’, she said: and I was like I’m not really into it and so he literally like pushed my head down and was yeah. There have been a few of those kinds (NG: really) Yeah, unfortunately… they kind of don’t care that you can’t breathe. Yeah it's- that's probably honestly worse to me than unwanted, like penetration (NG: yeah) yeah because I’m not able to breathe (NG: yeah exactly) Yeah yeah, it's probably just as bad as being choked
Despite the utopian impression cast by the modern mythology of everyday kink that young women are now ‘making choices for themselves, being autonomous, responding with authenticity, being in charge of their sexuality (Professor Smith: 570), Michaela brings us back to earth in describing a world in which (hetero)sexual exploitation is to be expected, a world in which less has changed for women, than we would like to imagine, since the so-called sexual revolution of the mid-late twentieth century. Michaela's experiences trouble the sex-positive ‘“progress narrative” of sexuality’ (Fahs, 2014: 268), which Breanne Fahs argues has focussed on advancing ‘positive liberty’ – women's (at least theoretical) ‘freedom to do what we want to do’ at the expense of ongoing attention to ‘negative liberty’ – that is, women's ‘freedom from oppressive structures and demands’ (269). Michaela's account suggests that not only are exploitative (at best) experiences normative for some young women, and that they have become overlaid with additional acts of physical violence – but also that despite post-‘Me Too’ rhetoric to the contrary, we can’t take it for granted that women have access to a critical lens for making sense of them. For example, she said, ‘I think it was last year I only found out about a term um called sexual- sexual coercion (NG: right) I didn’t know that was a thing and I was like, oh my god like, this makes so much sense’. Consequently, at the time she had no discursive (and, therefore, practical) support for making sense of her experiences in ways that did not at least implicitly hold her responsible. For example, although she spoke of feeling ‘scared’ and ‘powerless’ in many cases, at one point she described herself as a ‘people pleaser’ which she implied was the reason she ended up having these experiences.
The Coercive Power of Normalisation and the Limits of Consent
The kind of nonconsensual rough sex that Michaela described would likely be widely regarded as unethical, exploitative and abusive (and in some cases meeting a legal threshold for assault and/or sexual violation). In our survey of people's views and experiences related to ‘rough sex’, the importance of consent, and implicitly choice, were strong themes. Many drew on libertarian sex-positive rhetoric, making statements like, ‘any kind of sex is OK as long as it's consensual’. But Michaela's experiences, as well as those described by other women, highlight how poorly the theoretical concept of consent fits heterosexual encounters shaped by a male sexual partner's sexual selfishness and culturally condoned sense of entitlement. Her experience had taught her to be cynical about consent: That whole concept really angers me (NG: mmm) because no one, I don’t know I just feel like no one really… these days especially like Tinder hookups or something, really give a shit about consent. Yeah, oh no guys don’t really, ever ask they kind of just… assume (NG: mmm) like if you kiss them then they assume oh, she wants more than that (NG: mmm) so that's fine but that's often not always (NG: mmm) like that at all they couldn’t care less about consent, yeah.
Brooke
Brooke is a Pākehā woman who was 24 years old at the time of our interview. She talked about a man she had dated, who she found charismatic and wanted to impress. During sex, he would choke her forcefully, without ever asking her. She said she would be left with bruises, and that one time ‘I remember the next day my throat feeling really puffy and [I was] having trouble breathing’. Another time, she said, ‘he slapped me across the jaw without warning me first’, which she said ‘really hurt’. The next day her jaw ‘felt misaligned’ and ‘it was sore to chew on one side’.
Far from the kind of mutual playful experimentation that Professor Smith talked about, Brooke's partner's behaviour seemed to be guided purely by the pursuit of his own interests, such as seeking his own sexual ‘gratification’. She said that during sex: he wouldn’t look in my eyes and I think if he did it kind of felt like he was staring right through me or like, like it just sort of not like an affectionate look but sort of like an aggressive but focused look… No, he was it didn’t feel affectionate. It felt like something he was doing to me for himself.
Brooke found this behaviour shocking and confusing, and she wondered why he was wanting to hurt her for his gratification. ‘But’, she said, ‘I just I really, really liked him a lot so I didn’t want to tell him to stop’. While this uninvited aggressive behaviour seems so clearly unethical and dehumanising, the dynamics of the interaction in which Brooke's sexual partner choked her did not neatly fit with the dynamics described by narratives of men's strangulation of women in the context of domestic violence (e.g., Snow, 2023; see also, Herring, 2023; Palmer and Wiener, 2021; Thomas et al., 2014). Rather it seemed like a pattern of behaviour enabled by the fuzzy new sexual scripts for ‘rough sex’ laid over a mundane taken for granted gendered hierarchy of desire. Which is not to say that his actions are not exploitative, abusive and violent, but that the motivations and drivers might be quite different. For instance, Brooke did not describe her sexual partner's choking of her as an act designed to intimidate and instil fear and control (cf, for example, Thomas et al., 2014). After the sex, Brooke said, ‘He was affectionate he would, you know, cuddle me we would go to sleep you know, cuddling he would kiss my face you know’. In Brooke's recounting of her partner's response, there was no indication that he showed awareness of having done anything wrong that he would need to account for – none of the justificatory tactics through which men who perpetrate violence against their intimate women partners are widely reported to use to deny, minimise and blame others for their actions (e.g., Cavanagh et al., 2001) or the performative apologies and promises to change that can sometimes follow violent acts in the context of coercive control/intimate partner violence (see Thomas et al., 2014). Rather, the aggressive acts seemed to be framed within the relationship as having sexual meaning (albeit a violent and one-sided form of sex). Brooke's description of allowing it to happen gave no sense of it being an act of submission due to fear of further violence or a habituated safety response to a pattern of coercive control beyond the sexual relationship. Rather, it was treated as her gift to him. After these sexual interactions where he subjected her to physically aggressive acts, including choking, Brooke said that, for example, ‘he would say you know that was great or you – you’re great I would feel like oh I’ve made him really happy (NG: mmm) by him being able to do that to me’.
Nevertheless, these experiences were deeply troubling for Brooke. At one point, she said, ‘he was choking me and then he slapped me in the face and then he spat in my face and I started to feel like… I didn’t really want that. And I felt… kind of dirty…’. She couldn’t bring herself to say anything, however, as she didn’t want to appear ‘prudish or boring’: I didn’t really know how to react. I think I was, I was very very enamoured by him (NG: mmm) And I thought he was really cool and I guess I felt like… he might think I was prudish or boring if I got him to stop (NG: mmm) and I thought… I don’t know maybe that it made me cool (NG: mmm) or just like, that it was… I don’t know normal maybe that you know yeah that- that I was- I was prudish that I wasn’t into this so I just couldn’t do it and I kind of didn’t say anything about it afterwards.
And I said, I think that I was OK with it and I think they were a bit um they weren’t explicitly concerned they didn’t shame me for it but they just were a bit confused as to why I kind of said I was- I guess I’m OK with it um but I definitely would have been way too ashamed to say to them that I wasn’t necessarily sure if I was OK with it (NG: yeah) um (NG: yeah) and it would be kind of embarrassing if I mentioned that and then continued to date him because they would say you know (NG: yeah) why (NG: yeah)
Here, Brooke's narrative illustrates the contemporary neoliberal ‘agency imperative’ that shapes expectations for young women's sexuality. As Laina Bay-Cheng (2015) argues, the old sexual double standard that judged women's sexual behaviour against moralistic proscriptions has been intersected by a new requirement for an in-control and choosing sexual subjectivity for women (as, ironically, illustrated in Professor Smith's uptake of this discourse as if it represents an unmediated reality). In this way, it is acceptable to be sexually active (or ‘adventurous’) or not, only so far as these positions can be presented as intentional: A growing body of research indicates that sexual agency, as construed in neoliberal terms, is a key criterion in the differentiation between accepted sexual conduct (i.e., behaviors and experiences that appear to be freely chosen and self-determined) and that which is condemned, pitied, or both (i.e., behaviors and experiences that result from weakness, ineptitude, and/or irresponsibility). (Bay-Cheng, 2015: 282)
Brooke's narrative also powerfully speaks to the coercive power of contemporary sociosexual norms and highlights not only the deceptiveness of the modern mythology of everyday kink (in obscuring that such experiences exist) but also its constitutive power in helping to produce sociosexual conditions that enable men's sexual exploitation and violation of women (see also Faustino and Gavey, 2022; Gavey, 2019a, for how this works in relation to heterosexual anal sex and heterosexual sex more generally.) Looking back, Brooke said she clearly saw his behaviour as ‘wrong’: ‘He never talked about it (NG: mmm) um he was quite violent with me and I never expressed an interest in it with him. I know that that's wrong.’ As we talked about the complexity of how consent operates in a context like that, Brooke shared a knowledgeable and nuanced analysis. She said: I know that I didn’t, explicitly say yes I know that I- I never said no and I know that that's a discussion people have around consent you know (NG: mmm) if a no is not a yes (NG: yeah) and maybe is not a yes, silence is not a yes (NG: mmm) but also I don’t feel like- it was, I feel like that the problems or the- the- in some ways, I don’t want to call it trauma, but struggles that I have around it having happened feels more, along the lines of that external, ability to consent and the fact- the fact that I didn’t feel I could say anything was not because I was scared of him but because I felt pressured by societal expectations norms pressures (NG: yeah) yeah (NG: mmm)
Isabella
Isabella is a Pākehā woman, who was 21 when I interviewed her. She described her experiences of being choked – also quite violently, also leaving her physically sore and with bruises (on her collarbone) – with her first boyfriend when she was 17. In contrast to Brooke's discussion of the ambiguity of consent, Isabella said her experiences were consensual. She said she had agreed to try it and, as she put it, she told herself at the time that she liked it: Yeah, so I wanted to try it because I’d like heard other people have done it before and I was just kind of experimenting like what that would be like and I thought I liked it. But at the time I liked it but looking back I don’t think I actually did. I just wanted to do it just because that's what it seemed like would be a good thing to do.
When she looked back, Isabella reflected that she agreed to being choked and went along with it because of the pressure of social norms. She described her first experiences of rough sex as having been inspired through elements of the sociocultural milieu that she was in at the time. She explained: Yeah it was the culture at the time because 17 is still in high school so yeah there are lots of like your peers talking about sex and porn and stuff and, even in the media just like knowing that there's like different types of sex like the vanilla, kinks and stuff and, yeah I was kind of just persuaded into thinking that- that [‘vanilla’] was really bad… I just I can’t be that. And kind of just the idea that sex isn’t enjoyable if it's vanilla, and you have to have some sort of like rough, um rough acts in it when it's not really the case.
As Isabella's narrative shows, when ‘rough sex’ is normalised, not only does it come to be seen as a possible sexual option, but when it is laden with positive associations of empowerment and liberation it can become perceived by young women as something they should be interested in. Like Brooke, Isabella felt at the time that to reject this would mean being positioned in undesirable and tainted ways as ‘bad’ and not ‘sexy’. In Isabella's case, she described how this led to a performance of consensual sexiness that did not reflect her actual preferences: Because at the time I thought oh like I like have to be like really like sexy like show that I’m into all these things when, yeah it felt like an act and actually it wasn’t actually real, a real thing I liked.
Many of the women I interviewed described this sort of one-sided dynamic in which they conveyed a sense of being the object of their sexual partner's sexual pursuit. In different ways Michaela, Brooke and Isabella all reflected on the disingenuous ways that the normalisation of ‘rough sex’ allows and covers up men's sexual exploitation and/or violence against women; and they grappled with how to make sense of this in a social context in which they felt either their own sexual interests were assumed to be irrelevant or that they were expected to like being subjected to acts of physical force and aggression during sex.
As Isabella observed: Just, like if that was- if these acts outside of sex it would- it would be violence but just because it's during sex it's considered normal. But it's pretty much the same thing. That I guess consent is, is the um factor that determines the two that, yeah still pretty, pretty much the same act ‘cause the guy that's doing it still gets to do it but with consent which kind of just gives him an excuse to do it. looking back I thought it was empowering and exciting but it's actually kind of another way just for men to just have power over me (NG: mhm), which I don’t actually like so.
Conclusion
I have argued that during the trial of Jesse Kempson for the murder of Grace Millane, a modern mythology of everyday kink was fabricated by the defence to normalise forceful choking during sex and support their argument that Grace Millane died by accident during a consensual sexual encounter. The modern mythology of everyday kink was also largely accepted by the Crown, who contrasted implicitly harmless ‘safe sex play’ and ‘a bit of choking’ with Kempson's extreme violence. This particular discourse of rough sex constructs an object of ‘rough sex’ or everyday kink as a common benign feature of modern sexuality, particularly among young people. It erroneously borrows from the ethos of BDSM to portray it as an egalitarian playing field in which women are agentic and pleasure-seeking, more generally presenting the act of a man choking a woman during sex as implicitly sex-positive. I am not suggesting that this kind of ethical and egalitarian ‘rough sex’ outside the parameters of BDSM-proper is a complete fiction – one of the women I interviewed described how it existed in her relationship, notably characterised by explicit communication and desire, trust and, of course, consent. However, I have presented the suppressed underside of the rosy portrayal presented in the trial, focusing on three young women's stories that illustrate the coercive dynamics of unwanted and unenjoyed ‘rough sex’ with men. I have argued that the modern mythology of everyday kink both occludes another reality of men's sexual coercion, exploitation and violence against women in the name of ‘rough sex’ and that the construct of ‘rough sex’ portrayed through this discourse actually works coercively to enable new forms of men's sexual exploitation and violence against women and girls in the first place. Within the context of a criminal trial, this can set up a false binary between ‘rough sex’ (as a category portrayed as implicitly consensual and ethical) and the criminal zones of sexual and potentially fatal violence – whereas the research shows that in practice ‘rough sex’ is such a broad concept as to be virtually meaningless (Gavey and Brewster, 2024), and that it includes nonconsensual sex and violence within its loose perimeter. Beyond the courtroom, I have argued, the reinforcement of this myth in legal spheres (and especially in high profile court cases) contributes to a broader cultural scaffolding that enables, minimises and condones violence against women in the name of sex.
Footnotes
Acknowledgements
I am especially grateful to the women who shared such personal stories with me about their experiences with ‘rough sex’. Thanks to Justice Moore for granting permission to access the Court transcript and staff at the Auckland High Court for being so helpful in facilitating my access; and the Crown and defence on the case for not opposing my access to their closing arguments. I am grateful to Minha Kim and Daman Kaur for their collaboration and assistance in the early stages of the wider programme of research that this article draws on and Minha and Olivia Brewster in the latter stages; and other colleagues and postgraduate students in my wider research community who have in different ways provided invaluable sounding boards and/or support or practical assistance in relation to my research in this area, including Ali Towns, Elisabeth McDonald, Jade Farley, Jade Le Grice, Jan Jordan, Julia Tolmie, Kris Taylor, Maria Faustino, Melanie Beres, Nikki Denholm, Paulette Benton-Greig, Pearl Hindley, Peter Adams, Sam Ashton, Sam Keene.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
