The 'Rough Sex Gone Wrong' Defense Is Allowing Men To Literally Get Away With Murder "She of course is not there to say otherwise." (OP: Kind of like the "battered spouse" defense).

iainmf · 2020-02-17T23:00:57+00:00

You are talking about culpability. And we do have different levels of culpability for serious situations.

Here is a formulation of different levels of culpability.

A person causes a result purposely if the result is his/her goal in doing the action that causes it,
A person causes a result knowingly if he/she knows that the result is virtually certain to occur from the action he/she undertakes,
A person causes a result recklessly if he/she is aware of and disregards a substantial and unjustifiable risk of the result occurring from the action, and
A person causes a result negligently if there is a substantial and unjustifiable risk he/she is unaware of but should be aware of.

This is where we get distinctions between murder, manslaughter and negligent homicide after someone has died.

The issue, as I see it, is that sex is a cooperative event between two moral actors. Sex is not done by one person to another. If two people agree to take part in a risky activity and only one dies, does that make the survivor more morally responsible than the deceased? In some situations, like tandem skydiving, the skydiving instructor bears the most responsibility because they are an expert and the other person is a novice. That is not the case for sex.

I think the situation for a death during rough sex can be clarified by removing the sex element. Consider 'Jackass'. Here is a scene where two people engage in rough behaviour. Who is morally responsible for Steve O getting hit in the balls? Surely they are both responsible.

Of course, if someone dies, then it is harder to determine if each person had equal responsibility. And there are situations where one person has more responsibility than the other, for example, if one person is restrained, then the other person has more responsibility because the restrained person can't act to prevent harm.

But, in general, I think both people involved share responsibility for any harm done. Perhaps both could be found criminally negligent.

Another thing I just considered is, do we consider self-harm to be immoral, or criminal?

In any case, the accused should have the widest possible defences available and the prosecution should address the shortcomings of the defence.

2020-02-17T19:31:13+00:00

The lady doth protest too much, methinks.

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