Grace Millane, consent, and Fifty Shades of Grey: what the trial tells us about the social, sexual and legal status of women today

Sometimes a criminal trial throws light on a deeper social or political problem; the trial of the murderer of Grace Millane is one of those times.

Grace Millane Photo: Lucie Blackman Trust/ PAFor the benefit of readers outside New Zealand, I should explain that this trial has gripped public attention here for the past four weeks. Grace Millane was a 21-year-old tourist from the United Kingdom who was reported missing while travelling in New Zealand in early December 2018. Her disappearance became the focus of widespread concern both in New Zealand and internationally, which culminated in public vigils where thousands of people expressed distress and grief, when her body was discovered about a week later. Prime Minister Jacinda Ardern made a public apology to Grace Millane’s family, saying “on behalf of New Zealand, I want to apologise. Your daughter should have been safe here, and she wasn’t.”

Auckland Vigil for Grace Millane, December 2018. Photo: David White, Stuff

A 26-year-old man was charged with her murder. The case came to trial in November 2019, and on 22 November a jury found him guilty of murder. He will be sentenced in February next year.

The prosecution charged that the man (whose name has been legally suppressed by a judge’s order, and remains suppressed even after the conviction*) had strangled Millane in a hotel room after they met for a date.

The prosecution called testimony from three women who had met the accused recently through the dating app Tinder – as Grace Millane had. One of the women testified that he had suffocated her until she thought she was going to die. Police gave evidence taken from the accused person’s phone, which indicated his actions in the moments and hours after Grace’s death. Among other things, the man searched for pornography, arranged another date on Tinder, took some intimate photos of Grace’s dead body (described by the prosecution as ‘trophy photos’) and searched for various materials like ‘large bags’ and shovels – items which he later purchased and used in disposing of the body.

The defendant pleaded not guilty, and chose not to testify in his own defence. Defence counsel did not dispute the basic facts of the death, but argued that it was accidental, resulting from a consensual sex act involving choking. The defence argued that his actions in disposing of the body were those of a man who panicked, believing he would be wrongly blamed for the death.

The question of consent in a sexual act thus became a central issue of the trial. On that basis, testimony regarding details of Grace Millane’s sexual past formed a big part of the defence case. Written testimonies from a former male partner and a female friend read to the court stated that Grace Millane enjoyed having pressure applied to her neck while having sex. (The former partner’s name was kept secret, ‘for legal reasons.’) An ‘agreed facts document’ read to the jury stated that there were 400 messages on Grace’s laptop relating to BDSM (Bondage/Discipline Domination/Submission Sadism/Masochism) sexual practices. Security camera videos were played in court showing the accused and Grace Millane in various bars, including one video showing the two kissing.

Pathologist Dr Fintan Garavan, appearing for the defence, also testified that due to the volume of alcohol Grace had drunk during the date, her heart may have gone into a ‘terminal tailspin’ when she was choked. He told the jury a combination of obstruction of the blood flow, pressure on her nervous system and being drunk meant she might have died quickly.  Garavan said the injuries on Millane’s body were “consistent with a consensual sex act because there were no classic defensive wounds on her body, such as abrasions as she struggled to remove the hand of her killer. The bruises to Grace’s arms and shoulders Dr Garavan said, could have been ‘love bites’.

Justice Simon Moore

The presiding judge, Justice Simon Moore, gave the jury clear instruction on the question of consent in his summing up. “Consent is not relevant to murder. No person under New Zealand law can consent to their own death, or to injury to cause death,” he said. “Only if you, the jury, are to consider manslaughter does consent apply.”

He further explained, “Consent can be revoked at any time… Someone by their words or actions can say they no longer consent. Someone who is unconscious cannot continue to give consent either.”

“One definition of murder is the intention to kill. However, “reckless intent” can also result in murder. If the accused applied pressure to Grace’s neck with the intention of causing injury, knowing his actions could cause death, and carried on regardless – that is also murder,” he explained. The judge’s summation also highlighted the pathology evidence that it takes a number of minutes and quite some effort to kill someone by manual strangulation, which, the prosecution said, was incompatible with the low-level consensual touching described by the accused. Before death, the victim often bleeds from the whites of the eyes and the nose, and can fall unconscious and floppy in your arms. Grace Millane’s body showed bleeding from the nose. The prosecution said the accused must have recklessly continued past all these signs, for a further 5 to 10 minutes, to reach death.

In the end, it appears that the jury was convinced by this evidence, and likely also by the unconscionable actions of the accused following the death, that at the very least, reckless intent was proven beyond reasonable doubt.

Their unanimous verdict of guilty of murder was the best possible outcome, in the opinion of this writer.

Yet, the whole trial, and in particular the line of argument taken by the defence, has raised more questions than it answered, and the public discussion has continued after the verdict.

I have no expert knowledge in this area, but both the letter of the law and the judge’s instructions on consent seem remarkably unambiguous to me: clearly, the ‘rough sex gone wrong’ argument adopted by the defence in this case has absolutely no basis in law. The fact that it is still argued, in spite of that, (and in fact, with increasing frequency around the world) indicates that on the question of sexual consent at least, women’s legal status is being pushed backwards.

I am not one of those who believe that this question should be resolved by excluding all discussion of the complainant’s sexual history from trials involving allegations of sexual violence. It is precisely in cases of sexual violence, where almost always there are no witnesses except the complainant and the defendant (and in this case, one of those two witnesses is dead) that a jury must depend heavily on circumstantial evidence in order to establish the truth or falsehood of an allegation. Past patterns of sexual behaviour on the part of both defendant and complainant are entirely relevant and indispensable pieces of circumstantial evidence. The distress caused to complainants and their families by having these matters discussed in public is, unfortunately, unavoidable.

A law change that will remove discussion of the complainant’s past sexual history from rape trials, except in rare circumstances, is passing through parliament at present, and this has been welcomed by many advocates for rape victims, as a way of reducing this stress on complainants. Also in the package are various other changes that undermine the right of the accused to confront their accuser in court. Some lawyers have warned against these changes.

Jan Logie, Under-Secretary to the Minister of Justice for domestic and sexual violence issues, is supporting the bill to exclude complainants’ sexual history from trials. Photo: New Zealand Herald.

If the complainant’s past history is to be excluded from such trials, then that becomes a very strong argument for also excluding the defendant’s past history, in the interests of a fair trial. And in fact in the Grace Millane trial, the defence went to great efforts in pre-trial hearings to suppress the testimony from the other women who had come forward with stories of their own experiences with the accused. Of eleven women who came forward, the judge ruled that nine had evidence which was relevant and admissible, and could testify at trial. The defence appealed this to the Court of Appeal, and for reasons which have not been disclosed, that number was reduced to four. (This was revealed in an article in Stuff which has since been withdrawn; some excerpts from that article are reproduced here.)

Excluding such circumstantial evidence from the court would reduce cases like these to a contest of ‘his word against hers.’ And in general, such contests favour the powerful, the confident, the well-connected, those in positions of authority. This is not a change that will favour those fighting to overcome anti-women bias in the law courts.

What is needed, instead, is to clearly establish the principle of consent that was outlined by Justice Moore in this case: the fact that someone may have consented to some sexual act a thousand times in the past does not at all prove that they consented in the present instance. Once that principle is established, then most of the disrespectful, abusive, harassing and badgering of rape complainants in court, which was routine in the past, which has been slightly reduced thanks to the pressure of the women’s movement of the 1970s and 80s but not eliminated, and which now re-appears in new and more malignant forms in this trial, can be challenged and ruled irrelevant.  In an indirect way, the guilty verdict in this case is actually an example of this principle in action.

The clearest formulation of consent in relation to the Grace Millane case that I have seen is in an excellent article on the case by Nicola Gavey in Spinoff.  Gavey writes: “Without direct, explicit and unambiguous evidence from the person on the receiving end that they consented to “violent” sex – which is what the convicted man described happening – the only safe and reasonable assumption we can make is that it was sexual violence. In Grace Millane’s case, there is no evidence of her consenting to anything. There was not even forensic evidence to confirm that she had had sexual intercourse the night she died.”

This principle becomes ever more important in a world awash with pornography, and permeated with the sexual cravings arising in the jaded sexual appetites of consumers of pornography. The real significance of the line taken by the defence lawyers in the Grace Millane trial is that they attempted to re-define the boundaries of consent in dangerous new ways, in conformity with the normalisation of pornography. They failed on this occasion, but it won’t be the last attempt.

The defence lawyers lined up their experts, and focused on Grace Millane’s history of dabbling with BDSM (Bondage/Discipline Domination/Submission Sadism/Masochism). Sexual cultures expert Professor Clarissa Smith, who gave evidence for the defence by video link from the UK, said BDSM was a common practice, especially since the release of the sexual fantasy book and film 50 Shades of Grey, and was “not an interest driven only by men.” She presented this as a form of sexual liberation of women. “Young people talk about sex as forms of entertainment, self-realisation and forms of community. It’s actually an incredibly important part of youth cultures,” she told the court.

Professor Clarissa Smith giving evidence by video link. Photo: Dan Cook, RNZ

“Amongst younger women we are seeing a greater sense of their owning their own sexuality, of being prepared to say what they would like. We’re no longer living in the era of, you know, ‘lay back and think of England,’” Smith is quoted in a video report.

Defence Counsel Ian Brookie elaborated on this. “It’s about sexual pleasure. It’s not about pain or violence,” Brookie told the jury. Grace had an interest in BDSM practice but she was inexperienced.  The accused was new to it and had no logins to any BDSM dating apps. He had engaged with “breath play” with another woman a few weeks prior to his date with Grace, but he was asked to do it during sex, Brookie said.  “There were no safe words. It’s just something people are doing now as part of the leisure activity of sex. He is just a young man doing what women want him to do in the bedroom,” Brookie said. [My emphasis – JR] “I suggest to you that evidence also confirms what the accused said happened.”

It would be hard to find a more overt expression of the classic sexist defence of violence against women: ‘she was asking for it.’ But it also goes beyond that.

The reference to 50 Shades of Grey was not accidental. The accused also mentioned this book in his police interview, saying that he and Grace had discussed it on their date. “She said there was a few things she liked doing and she’d done with her ex-partner” and asking if they could “get into bondage.”

Promotional poster for Fifty Shades of Grey movie

What better way to press for a re-drawing of the legal boundaries of what are acceptable sexual and social norms than through the authority of a book which has sold 125 million copies, becoming the fastest-selling book of all time in the UK?  No one can deny the immense popularity of this cultural artefact of capitalism in decay, nor pretend that its popularity doesn’t represent a shift of some kind.

The shift is not so much in the normalisation of BDSM – although that does appear to have happened, if one can believe the ‘sexual culture expert’ Professor Smith. Rather, it is in the romanticising and prettying up of the deeply oppressive, abusive and misogynistic relationship around which the book’s plot revolves, where sexual relations between men and women are reduced to matters of violence, coercion, lavish gifts, non-disclosure contracts, and the social submissiveness of women. As an enthusiastic reviewer for the Sydney Morning Herald put it, “The film fleshes out an otherwise legalistic concept like ‘consent’ into a living, breathing, and at times, uncomfortable interpersonal experience.” Yeah, sure it does.

It is not too far-fetched to see in the murderer of Grace Millane – with his Tinder obsession, his fantasies of domination and control, and his empty boasts of fabulous wealth – a dim reflection of the character in Fifty Shades of Grey. The killer’s personality is a product of the same decaying social and sexual culture that creates a mass market for the book and which nourishes the pornography trade.  And so also, in an infinitely more tragic and blameless way, was Grace herself.

 

Criminals such as this loathsome individual can be put behind bars. It is a far more difficult task to overcome the inferior social status of women and the political and cultural conditions in which such depraved personalities thrive and reproduce, and in which the violence of men against their sexual partners rages unchecked.

December 1961: Mobilisation of returned brigadistas in Havana celebrate successful completion of campaign with giant pencils. Literacy campaign became a social revolution, permanently raising the status of women

To change those things requires more than just a social movement like the women’s liberation movement of the 1970s-80s – whose gains were real but are now being thrown into reverse. The scale of social change requires nothing less than a social revolution in the relations between the sexes. The best living example I know of such a social revolution in relations between the sexes is that which occurred as part of the Cuban revolution (and which I wrote about here).

It can sometimes appear that we are so far from such a social revolution that to speak of it brings only a sigh of despair. That would be a misjudgement. The forces which will lead this social revolution are already being assembled, in the vast new contingents of the working class worldwide, especially in China, India, and elsewhere in Asia, where women are coming to the forefront of working class struggles, just as in Cuba in an earlier generation. The objective conditions are ripening, in the struggles of the clothing workers of Cambodia and Bangladesh, the electronics workers of Hong Kong and southern China, the women soldiers of Kurdistan, the women taking a leading role in the popular uprising in Chile, the indigenous women of Bolivia, Ihumātao, Standing Rock and elsewhere – this is where the first glimpses of this coming social revolution can be seen. No place in the world will be untouched by it.

Auckland vigil, December 2018. The murder of Grace Millane was universally recognised as a crime against all women, and widely repudiated. Photo: David White, Stuff

The public response to Grace Millane’s disappearance and murder also gives reason for optimism. Ultimately it was those broad public outpourings in repudiation of the crime – universally recognised as a crime against all women – and the close scrutiny of the court proceedings consequent on that, which brought a measure of justice to Grace’s family.  That is something that can be built upon.

 

* In fact, although the original suppression order was ‘not permanent,’ and the law on name suppression states that the court must give reasons for making, varying or revoking a suppression order, in this case even the reasons for the suppression are themselves suppressed. Name suppression of accused persons is not uncommon in New Zealand; however it is highly unusual for the suppression order to continue after conviction, and when it does, it is usually imposed for reasons relating to protecting the victims of crime, which is obviously not the case here. The suppression of the reasons for the order, the extended name suppression of the defendant itself, the anonymity of the witness who testified about Grace Millane’s past sexual practices, the undisclosed reasons why the Court of Appeal ruled that several of the witnesses against the defendant were inadmissible, and the nature of the constraints placed on those who did testify – these amount to a substantial part of the trial that was beyond public scrutiny. This is a worrying aspect of the trial.

3 responses to “Grace Millane, consent, and Fifty Shades of Grey: what the trial tells us about the social, sexual and legal status of women today

  1. The past sexual history of a victim of sexual violence is irrelevant to the determination of the guilt or innocence of the alleged perpetrator. For that exact reason, such evidence is inadmissible in Canadian courts in sexual offence cases. Otherwise, prostitutes could be raped with impunity. On the other hand, previous conduct by the accused may be very relevant and probative, as it is in any other kind of criminal case. Evidence of the accused’s previous convictions or “similar fact evidence” from witnesses who have had dealings with the accused are relevant if they go to prove that the accused has engaged in a pattern of conduct that makes him guilty of a series of similar offences, including the one with which he is currently on trial.

    • Thanks for your comment, Jeff. I still struggle with this question, and up to the time of this trial my opinion was more or less the same as yours. But I asked myself: was it correct to allow testimony of Grace Millane’s interest in BDSM as evidence in this trial? I think it was. If that information had been withheld from the jury, and they had convicted him, and later the fact of her interest in BDSM had become known (as it inevitably would have), then that would have raised a serious question over the correctness of the conviction, and there would be plenty of room for ‘reasonable doubt’ about whether the defendant’s account of events was false.

      I think that if the principle of consent were established along the lines outlined by the judge in this trial, it would not only prevent the situation where ‘prostitutes could be raped with impunity,’ but would also eliminate most if not all of the bullying and abusive questioning of rape complainants in court. At least, the complainant’s lawyer would have strong grounds to object to it. (In relation to prostitution, I also favour a corollary of the consent principle voiced by feminists who oppose prostitution, which is that consent cannot be bought.)

      I don’t know about Canada, but as far as I know, in New Zealand, mention in court of any past criminal record of the accused is forbidden as prejudicial to the defendant. Only after conviction can newspapers etc mention the person’s criminal record, and of course it is taken into account at sentencing. I agree with that rule, for basically the same reasons as I support the judge’s comments on consent: the fact that someone has robbed a dozen banks in their past life does not prove that they have robbed this bank on this occasion. I think it is important to maintain these protections against false accusation. Otherwise people with convictions could be framed up with impunity.

      Why then do I support admitting the evidence of the other women in this case? Because it seems to me that they established a pattern of behaviour in the present that provided circumstantial evidence entirely relevant to the defendant’s behaviour on the night in question – in one case, the other woman was subjected to suffocation only about a week earlier, if I recall correctly. The lapse of time is an important consideration. Perhaps that was the basis on which some of the other witnesses were excluded by the Court of Appeal.

  2. Evidence of Millane’s interest in BDSM does not prove she consented on this occasion. In Canada evidence of past sexual conduct is not admissible to support an inference that, by reason of the sexual nature of that previous activity, the complainant is more likely to have consented to the sexual activity in the subject case. I think that’s a reasonable and fair approach to the consent issue. In any event, as judge Moore pointed out, consent is not relevant in a murder case.

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