Domestic violence and abuse are pervasive and ubiquitous social issues which plague our society, causing direct harm (occasionally resulting in death) to the individuals and a range of indirect harms to both victims and their families. In the year ending March 2019 ‘an estimated 2.4 million adults aged 16 to 74 years experienced domestic abuse’ in the preceding year, totalling 1.6 million women and 786,000 men (Domestic Abuse Bill Overarching Factsheet, 2020). As a result of these figures, the UK Government are moving to change current legislation covering domestic violence and abuse to ensure that the prevalence is reduced. The proposed Domestic Abuse Bill (2020) is currently under review following the second reading in the House of Lords on Tuesday 5th January 2021 (BBC News, 2021).
The bill will cover England and Wales, and predominantly proposes to ‘raise awareness and understanding about the devastating impact of domestic abuse on victims and their families…further improve the effectiveness of the justice system in providing protection for victims of domestic abuse and bringing perpetrators to justice’ and to create ‘a statutory definition of domestic abuse’ (Domestic Abuse Bill Overarching Factsheet, 2020). Amidst the clauses of this legislation, there has been demands for specific stand-alone non-fatal strangulation/asphyxiation legislation.
Erotic asphyxiation, [erotic] strangulation, choking, or Breath Play is a common consensual sexual behaviour within both the Vanilla and BDSM communities. Breath Play can be described as a practice ‘which involves intentionally cutting off the air supply for you or your partner’ (The Guardian [NG], 2021). Breath Play can be dangerous if not practiced safely and with care, at worst resulting in ‘mild brain damage…fractured trachea/larynx, internal bleeding, tinnitus, increased risk of miscarriage…facial and eyelid droop, loss of memory and even stroke’ (The Telegraph, 2021). However, studies have revealed that erotic asphyxiation with an intimate partner is very unlikely to result in morbidity or fatality, due to safe, careful and informed practice by BDSM-orientated individuals (Krueger, 2010a in Lehmiller, 2018: 372).
Whilst most facets of the Domestic Abuse Bill (2020) form a noble endeavour to ensure the safety of many at risk, there is a concern that this new non-fatal asphyxiation legislation could further criminalise and prosecute consensual behaviour. Clause 8 (which is particularly focused on choking in a domestic violence context) is a point of contention concerning the proposed bill, as it states that ‘“A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death”’ (Jess Phillips MP, HC Deb (16th June 2020) Col. 329). The proposed bill plans to follow the example of Australia, New Zealand and some parts of the United States, where non-fatal strangulation has become a specific offence under law (BBC News, 2021). The key volition behind this legislation is the belief that non-fatal asphyxiation is not always a failed homicide attempt, but ‘a common feature of domestic abuse’ which is used as ‘a tool used to exert power and control and to instil fear within an abusive relationship’ (They Work for You, 2020).
Following the second reading of the proposed Domestic Abuse Bill (5th January 2021), UK media outlets have shown support for the bill, reiterating the points raised in the ongoing debates in the Houses of Commons and Lords in recent months. It has been highlighted that the experience of asphyxiation delivered by an intimate partner is highly gendered, with nearly all patients being female and perpetrators being male (The Daily Mail, 2021). A survey into strangulation within the context of domestic abuse revealed that 90% of 487 Women ‘had been strangled by an intimate partner’ (The Telegraph, 2021). To illustrate these statistics, articles have featured individuals who have been subject to strangulation amongst the domestic abuse they have experienced, including ‘spitting, head-butting’ and being shot (The Telegraph, 2021). Additionally, the article had reported individuals stating that they felt ‘immediate fear of death’ and like their heads were going to “explode” (The Telegraph, 2021).
It has been argued that the existing law is ‘not fit for purpose’ and that the introduction of ‘“a specific offence with appropriate sanctions would make the dangers of non-fatal strangulation – and the appropriate action by law enforcement – crystal clear”’ (The Guardian [NG], 2021). It has been purported that ‘victims and survivors were being failed by the law’ (The Daily Mail, 2021). Currently, choking is ‘punishable under common assault law, which carries a maximum sentence of six months’ (The Daily Mail, 2021), with some cases concluding in sentences as little as three months, if prosecuted at all (BBC News, 2021).
It has been argued that as common assault is a summary offence which can be tried at either a Magistrates or Crown Court (BBC News, 2021), this categorisation likens chocking to a slap, ultimately underestimating the ‘terror and near-death experience inflicted on the victim’ (The Guardian [NG], 2021).
However, the motion to pass the non-fatal asphyxiation legislation has not been unanimous across government, with the majority of the government reportedly stating that ‘it has no plans to change the law’ as they argue that existing legislation covers this offence (BBC News, 2021), in both Section 21 of the Offences Against a Person Act (1861) and section 76 of the Serious Crime Act (2015). Alex Chalk MP has been particularly vocal on this matter stating that the introduction of a stand-alone non-fatal strangulation offence could ‘“risk confusion in the law”’, and that due to the ‘“bits that are missing”’ and the fact that ‘“creating a new offence could limit the circumstances covered, and create additional evidential burdens”’, would be difficult to pass in is current state (They Work for You, 2020).
Despite this, Baroness Newlove (former victim’s commissioner), with the backing of several politicians and campaigners, has stated that she will table an amendment to the bill when it reached committee stage (BBC News, 2021).
In addition to the conflation of all asphyxiation as domestic abuse, the bill will inevitably set precedents which will directly deem all breath play activity as dangerous, coercive and criminal. The key concerns of the ways in which the Domestic Abuse Bill (2020) will infringe on personal freedoms and demonise BDSM-related activity are listed as follows:
Firstly, the statutory definition of domestic abuse is yet to be formed, but is promised to include definitions of domestic abuse in terms of both relationships and behaviours which constitute domestic abuse and make a distinction ‘emphasising that domestic abuse is not just physical or sexual violence, but can also be emotional, coercive or controlling, and economic abuse (Domestic Abuse Bill: Statutory Definition of Domestic Abuse Factsheet, 2020). Even so, the construction of a statutory definition of domestic abuse by government actors will not be an effective motion if the process is not collaborative and informed by a range of individuals, including those who have experienced domestic abuse, those who practice BDSM related behaviours (which are often depicted as domestic violence wrongly), and those who are able to contextualise these experiences to inform the government of the vast differences between these groups. Without these measures, the statutory definition will be likely to criminalise widespread consensual behaviour (particularly of those in the BDSM communities) in a bid to further govern the bounds of acceptable forms of sexual expression.
Secondly, the Domestic Abuse Bill (2020) seeks to re-establish ‘the broad legal principle established in the case of R v Brown [ UKHL 19], that a person cannot consent to actual bodily harm or other more serious injury or, by extension to their own death…for the purposes of obtaining sexual gratification’ (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020). The bill further promises to ‘apply to all cases, and so not just to those which occur within a domestic abuse context, where a person consents, or is said to have consented, to serious harm’, and as such it has been declared that ‘a defendant will be unable to rely on a victim’s consent’ in these cases (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020). The volition for the use of the principles behind R v Brown  is purported to be in the interests ‘that society be protected’ (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020).
Additionally, the fact that the proposed legislation is based on the R v Brown  decision is unsettling considering that there has been repetitive admission that this decision is ‘illiberal, outdated, and ripe for reform’ (Parliament.UK, 2020: 4). As well as this, there has been insistence that the ‘CPS believe that the case law will be overturned and so are not prosecuting violent assaults which could be claimed to be consensual’ (Parliament.UK, 2020: 4).
Thirdly, consent has been a long contested issue between government actors and BDSM communities, following the judicial decisions in R v Brown . Parliament have conflated acts related to BDSM including ‘Strangulation, slapping, punching, beating or wounding’ as ‘cases of sexual violence’ even ‘where the violence is claimed to be consensual’ (Parliament.UK, 2020: 5). More recent judicial decisions have further diminished the bodily autonomy of those who consent to the above mentioned acts stating ‘there are also 115 people – all but one of whom were women – who have had to attend court where it is claimed they consented to violent injury’ (BBC News, 2020). Decisions such as these are a direct challenge to the bodily autonomy and consent of practitioners of breath play and other BDSM-associated activities, diminishing any sense of the individual to govern their own bodies in the name of pleasure.
Clause 65 of the proposed Domestic Abuse Bill (2020) reinstates that ‘a person cannot consent to the infliction of serious harm or, by extension, to their own death, for the purposes of obtaining sexual gratification’ (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020). This clause is particularly aimed at tackling the rough sex defence, but its potential efficacy has been called into question by several political actors (HL Deb (5th January 2021) Volume 809, Col. 20).
Following on from this, a fourth point of concern is that in addition to clause 65 of the bill, clauses 4 and 5 also aim to address the rough sex defence (specifically during sexual activity), including asphyxiation (They Work for You, 2020). Clause 4 states that ‘If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury.’, with a subsection detailing that this will apply ‘whether or not the death occurred in the course of a sadomasochistic encounter’ (HC Deb (6th July 2020) Volume 678, Col 683). Whilst clause 5 states that ‘If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation.’, which also includes a subsection on sadomasochism, asserting that this will apply ‘whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter’ (HC Deb (6th July 2020) Volume 678, Col 683). It seems that the presentation of three separate clauses within the Domestic Abuse Bill (2020) are a desperate attempt by policy makers to ensure that their crusade against sadomasochism, in particular, remains underground, which seems overzealous at best, and poorly thought-out when thinking in terms of implementation.
In some respects, a systematic review of the rough sex defence is welcomed, as although this can be a genuine defence in rare cases (as BDSM practitioners are informed and practice safely for the most part), there are numerous cases where this has been employed with the effect of evading justice and appropriation of the guise of a consensual BDSM interaction or sex game “gone wrong”. Rough sex defences are employed in both homicides and non-fatal assaults, and is estimated to have been successfully used in approximately 60 murder cases in the UK since 1972 (all victims were female) (BBC News, 2020), and a further 7 homicides of men in recent years (Parliament.uk, 2020). The rough sex defence allows the perpetrator to present their actions as ‘a momentary loss of control’, rather than an act performed with intent (The Guardian, 2019), resulting in the perpetrator ‘being found either not guilty or, much more frequently, being convicted of manslaughter’ (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020). The media highlighted this point by Citing the infamous cases of Jane Longhurst, Vicky Roberts, Michelle Stonall, Anna Banks, Natalie Connolly, Chloe Miazek and Hannah Pearson, in which all women were murdered by intimate partners who sought the rough sex defence and received lenient or lesser sentences than they deserved (The Guardian, 2019).
This perverse and deceitful masquerading of BDSM interests by perpetrators using the rough sex defence serves to further impugn the reputation of BDSM culture in mainstream discourse, with the government stating that ‘rough sex, including sadomasochistic sexual activity’ in particular ‘will make a perpetrator liable to prosecution’ under the proposed Domestic Abuse Bill, even where the act in question may ‘occur in private and be consensual’ (Consent to Serious Harm for Sexual Gratification Not a Defence Policy Paper, 2020).
Lastly, the Domestic Abuse Bill will also have the power to issue domestic abuse orders/ notices (DAPO) ‘without the victim’s involvement’ (Domestic Abuse Bill Protection Notices/ Orders, 2020). A breach of a DAPO will carry a ‘maximum penalty of up to five years’ imprisonment, or a fine, or both’ (Domestic Abuse Bill Protection Notices/ Orders, 2020). This is another example of a total disregard of the right to consent to asphyxia by an individual due to preconceived and naïve ideals of “good sex Vs bad sex” according to the government. The implementation of these orders could result in the needless criminalisation of individuals who had consented to participate in asphyxia with a partner, as well as barring them from legally defending their partners with admission of their consent.
In conclusion, it seems that the Domestic Abuse Bill (2020) has garnered support from both the government and the public due to the need to protect those at risk of domestic abuse and domestic violence. Whilst the bill would achieve its aims of raising awareness of domestic abuse and offering further protections for victims and those indirectly affected by these crimes, it is likely that non-fatal strangulation legislation proposed by the Domestic Abuse Bill is not workable. Aforementioned in this article, the implementation of this legislation in its current form (without expert collaboration) would further the governments alienation from, suspicion of and needless criminalisation of alternative sexualities, particularly in the case of the BDSM communities in the UK. The non-fatal strangulation facet of the bill is a testament to the moral paternalistic stance the state continually takes on non-normative expressions of sex. This is clearly demonstrated by their disregard for individual consent and bodily autonomy, and their continued pinpointing of BDSM and Sadomasochistic behaviours in the issued guidance for several legislative measures.
Aforementioned in this article, we at Backlash UK are desperately worried by the dangers and gravity of the effects of domestic abuse on both victims and their families. We are appalled at the violence and fatalities which have occurred as a result of the strangulation of domestic abuse victims. We utterly condemn the violence and unsafe asphyxiation committed by the perpetrators in these situations.
However, we must acknowledge that Asphyxia (both erotic and auto-erotic) are common sexual fantasies and acts which take place between informed and consenting adults within the BDSM Community. The legislation proposed in the Domestic Abuse Bill (2020) (particularly clauses 8 and 65) prevents individuals from exploring their fantasies in a safe and informed manner may lead to more unnecessary deaths. The conflation of BDSM practice with domestic violence seeks to further pathologise and needlessly criminalises innocent consenting adults within an already stigmatised and marginalised subculture.
If you are in need of advice regarding the matters raised in this article, please contact us via the Backlash UK contact page on our website (https://www.backlash.org.uk/contact/) to discuss your circumstances further.
This article is a commentary regarding an ongoing legislative process, and as such will be reported on as we receive more information.
If you are thinking of endeavouring into erotic asphyxia or breath play please see the below sources detailing guidelines of safe practice, as a starting point, to ensure that you are informed:
Safe breath play resources:
Healthline (2019) ‘Everything You need to Know About Erotic Asphyxiation’. Available at: https://www.healthline.com/health/healthy-sex/erotic-asphyxiation
Je Joue (2020) ‘Breath Play: A Guide to Erotic Asphyxiation’. Available at: https://www.jejoue.co.uk/blogs/our-blog/breath-play-a-guide-to-erotic-asphyxiation
The Intimology (2020) ‘Breath Play: There’s No Fun & Games If You Don’t Play It Safe’. Available at: https://www.theintimology.com/post/breath-play-there-s-no-fun-games-if-you-don-t-play-it-safe
BBC News (2020) ‘Domestic Abuse Bill: MPs back ban on “Chilling rough sex defence”’. Available at: https://www.bbc.co.uk/news/uk-53311652
BBC News (2021) ‘Strangling: Calls for a new non-fatal strangulation offence’. Available at: https://www.bbc.co.uk/news/uk-55531093
Gov.UK (2020) ‘Consent to serious harm for sexual gratification is not a defence’. Available at: (is this correct referencing for gov doc?) https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/consent-to-serious-harm-for-sexual-gratification-not-a-defence
Gov.UK (2020) ‘Domestic Abuse Bill 2020: Overarching factsheet’. Available at: https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet
Gov.UK (2020) ‘Domestic Abuse Protection Notices/ Orders Factsheet’. Available at: https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-protection-notices-orders-factsheet
Gov.UK (2020) ‘Statutory definition of domestic abuse factsheet’. Available at: https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/statutory-definition-of-domestic-abuse-factsheet
HC Deb (16th June 2020) Col. 329. Available at: https://hansard.parliament.uk/Commons/2020-06-16/debates/3fa90c32-4bc5-4477-ab1e-aaf665da56e6/DomesticAbuseBill(TenthSitting)
HC Deb (6th July 2020) Volume 678, Col. 683. Available at: https://hansard.parliament.uk/Commons/2020-07-06/debates/CEAE6941-5DC8-4F76-9377-3DE3ED0F3553/DomesticAbuseBill
HL Deb (5th January 2021) Volume 809, Col. 20. Available at: https://hansard.parliament.uk/lords/2021-01-05/debates/1384371F-73F4-40BC-A44A-B0358CF839B6/DomesticAbuseBill
Lehmiller, J.J. (2018) The Psychology of Human Sexuality. 2nd Edition. Sussex: John Wiley and Sons LTD.
Parliament.UK (2020) ‘Written evidence submitted by We Can’t Consent to This – Further Submission (DAB73): Consent Defences and the Criminal Justice System Research briefing – June 2020’. Available at: https://publications.parliament.uk/pa/cm5801/cmpublic/DomesticAbuse/memo/DAB73.pdf
The Daily Mail (2021) ‘Choking partner during sex could be made illegal under new domestic abuse laws’. Available at: https://www.dailymail.co.uk/news/article-9113103/Choking-partner-sex-illegal-new-domestic-abuse-laws.html
The Guardian (2019) ‘The fatal, hateful rise of choking during sex’. Available at: https://www.theguardian.com/society/2019/jul/25/fatal-hateful-rise-of-choking-during-sex
The Guardian [NG] (2021) ‘Choking A Partner During Sex Could Become Illegal Under New UK Laws’. Available at: https://guardian.ng/life/choking-a-partner-during-sex-could-become-illegal-under-new-uk-laws/
The Telegraph (2021) ‘“My husband throttled me so hard he lifted me off the floor”’. Available at: https://www.telegraph.co.uk/christmas/2021/01/05/lived-decades-abuse-throttled-hard-lifted-floor/
They Work for You (2020) ‘Offence of non-fatal strangulation: Domestic Abuse Bill – in a Public Bill Committee on 16th June 2020’. Available at: https://www.theyworkforyou.com/pbc/2019-21/Domestic_Abuse_Bill/10-0_2020-06-16a.329.3