Lizzie Marvelly: Our justice system desecrated Grace's memory

Grace Millane was murdered in Auckland while travelling to New Zealand on her OE. Photo / Supplied

Opinion

COMMENT

You can't consent to murder. If you're unconscious, you can't consent to anything.

The point at which Grace Millane became unconscious was the precise moment when the types of sex she'd previously engaged in became irrelevant. Consensual sex – of whatever variety – ends when one of the participants falls unconscious.

At that point, any further sexual activity cannot legally be consensual. In that moment, there is a line between consent and criminality.

Grace Millane's killer crossed that line. And yet, the defence tried to suggest that he couldn't possibly have known that strangling someone continually for between 5-10 minutes with considerable pressure could cause death. Because, as they spun it, Grace liked rough treatment. And as much as they protested that they weren't blaming Grace (and they doth protest too much, methinks) by airing Grace's sexual history in open court, it obscured those simple questions that formed the centre of the case: had the accused intended to kill Grace? Had he acted with reckless disregard for her safety?

Last week, Jan Logie and Andrew Little announced changes to the way sexual assault trials are conducted. The Sexual Violence Legislation Bill will mean that a victim's sexual history is only admissible in court if the Judge deems it should be.

Grace Millane was murdered on the weekend of her 22nd birthday. Photo / Supplied

The new regulations would not have applied to Grace Millane's case, as the accused was charged with murder, but surely, after weeks of listening as a young woman's sex life was salaciously peddled before the court, we should question whether the bill should be expanded to include other charges.

The defence's case was a masterclass in how to use the subtleties of sexism to destroy credibility. And Grace wasn't their only victim. A witness described how during an encounter with Millane's killer he allegedly sat on her face and restrained her to the point where she couldn't breathe and began to fight for her life.

In response, a member of the defence team suggested that she "made up" the story of her suffocation, and raised the hundreds of text messages that she had exchanged with the accused after he allegedly suffocated her.

The insinuations were obvious, but no number of text messages exchanged after a sex act can retrospectively alter what happened during that sexual encounter. Text messages sent after suffocation do not somehow undo the suffocation. Contact with an abuser – in whatever form – does not mean that the abuse didn't happen.

Defence lawyer Ian Brookie at the High Court trial. Photo / Michael Craig

The defence described Millane's killer as "really just a young man who's prepared to do what his sexual partners want him to do in the bedroom." The implications triggered my gag reflex.

What hung in the air was the insinuation that the women wanted to be suffocated within an inch of their life (or in Grace's case, to the point of her death), and the accused was a gentleman who was generously prepared to oblige them.

What twaddle. It didn't end there. The defence suggested that they "weren't saying that Grace wasn't normal", but what was somehow lost in all the salacious details about BDSM was the rather salient fact that those engaging in rough sex don't normally die at the end of it.

Indeed, I can't help but wonder whether the BDSM defence (which, it must be noted, is on the rise worldwide) is a gift to men with homicidal tendencies.

The defence team delved deeply into the world of BDSM, ensuring that the sexual encounter shared by Grace and her killer was central. This was hardly accidental.

The public (from which the jury were chosen) has an appetite for descriptions of kinky sex, which can be proven by the immense international success of 50 Shades of Grey.

The killer told the police that he and Grace had spoken about 50 Shades of Grey during their date. (How convenient.) And during the trial, the defence presented evidence that Grace Millane had accounts on BDSM dating apps.

Who actually cares? And why is it relevant? Grace Millane would've been a teenager when the BDSM-themed 50 Shades of Grey became a worldwide sensation.

The films and the books dominated pop culture discussions between 2012-2018. She might've been curious about the acts it described. She also, having grown up with a cohort of young men who were accessing violent online porn prolifically, may have thought that BDSM was something that men wanted, and that a willingness to engage in rough sex would make women more desirable.

Grace Millane's sex life was exposed during the murder trial. Photo / Supplied

But – and this is important – all of that is immaterial. The vast majority of people who engage in BDSM are not murdered. Thousands of people have managed to engage in "breath play" without killing their partners. Given the amount of time it takes to kill someone by strangling them, it's not hard to stop long before the point where you take their life.

A man Grace had recently been intimate with before she died told Police that he "potentially" had placed his hand over her throat during sex, but confirmed that Grace had not asked him to do that.

For all we know, Grace may have been curious about what she read 50 Shades of Grey but not wanted any of her casual sexual partners to do anything of the sort. It's sickening that we're even being encouraged to think about Grace's sex life. Whatever she was into, she didn't deserve to die.

By turning Grace into a sex object, the defence – whether consciously or not – made her into something of a scarlet woman. No one will remember this case without remembering that "rough sex" was part of it. Grace's memory was desecrated in front of the court, the nation, and the world; and our justice system allowed it.

I will be forever grateful to the jury, and forever relieved that the Millane family got justice for their beautiful daughter. But I will never forgive the system that forced her parents to listen to such a disgusting narrative spun about their child.

We got the right result, but the process desperately needs an overhaul.