Colin Witcher comments on the legal dangers of the Free Use Agreement

Colin Witcher
By: Colin Witcher April 22, 2024

Colin Witcher comments on the dangers of the Free Use Agreement, and whether it will become the next ‘rough sex defence’, in the Metro.

“There is an inherent danger in “free use” as an arrangement between two consenting adults.

“A partner may not have fully thought through the ramifications of any such arrangement – and may not be truly consenting despite their partner assuming otherwise. Whilst there is no requirement that a victim must demonstrate or communicate to the defendant a lack of consent, what is required is some evidence to be put before the jury as to a lack of consent.

“Under such an arrangement, the offending partner may be unaware of the lack of consent, relying enthusiastically upon the “free use” agreement, and the victim unable to resist, verbalise or communicate a lack of consent.

“Of further concern, a partner may choose to hide behind “blanket consent”, despite having no reasonable belief that consent has been given. An agreement may be procured by deception – or in the context of an already controlling and coercive relationship.

“This is a dangerous practice for both parties: partners may act outside of the arrangement without realising or expose themselves to the risk of deliberate abuse. There would need to be a power for either party to end the agreement at will.

“In any trial, it might be difficult for a jury to grapple with the terms and understanding of any arrangement and to assess reasonable belief in such circumstances. A parallel might be drawn to circumstances where one asserts that violence, within reason, was an enjoyable part of the sexual dynamic, often referred to as the ‘rough sex defence”. Whilst it is not a true defence, in such cases a defendant is merely seeking to explain any injuries that occurred, often fatal, by claiming it resulted from consensual sexual activity. If a fatality occurred in a “free use” context, there is only one person able to describe that agreement to the jury – the defendant.

“Free use”, rather than being an act of empowerment, appears a dangerous backwards step in terms of equality and safety between sexual parties. That is not a moral judgement, but a note of caution in terms of the legal ramifications of any such agreement being reached.”

Colin’s comments were published in the Metro, 20 April 2024.

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