Recommendation For Training For Judges In Sexual Assault Cases

Following a judge’s “outdated views” on the definition of rape, a High Court Judge has called for family court judges to receive training on the “appropriate” ways to handle rape cases.

It emerged earlier this month that a mother had lost her case to deny her former partner access to their son, stating he had been “aggressive”, “controlling”, “emotionally abusive” and had accused him of physical and sexual assault.

The couple had been separated for 3 years before the father had requested access.

The trial was held before Judge Tolson, who dismissed the claims of domestic violence and rape, stating that the woman had “taken no physical steps” in stopping the rape and it could therefore “hardly be said to support a coherent account of rape”.

The mother appealed Tolson’s decision and in a written ruling, granting the appeal, Ms Justice Russell has found that there were “obsolescent concepts concerning the issue of consent” while overseeing the woman’s case.

“It is clear that the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct. This judgment is flawed.”

Catherine Piskolti, the barrister for the mother, told Ms Justice Russell that Judge Tolson had refused to make six “findings of domestic violence”, instead finding that the woman’s allegations were “untrue” and that she was “not raped” or “subject to a controlling relationship”.

Ms Piskolti said:

“The learned judge was wrong in impermissibly allowing his outdated views on sexual assault, and likely victim responses to this, to influence his findings and conclusions…

“The learned judge found that because the appellant had taken no physical steps to stop (him) from raping her this did not constitute rape, or non-consensual sexual intercourse, or that because she did not take physical steps to stop him her evidence is not credible and therefore it did not happen.”

In her written ruling, Ms Justice Russell has indicted that family court judges should get training on the “appropriate approach” when considering allegations of serious sexual assault.

“This is a senior judge, a designated family judge, a leadership judge in the family court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said ‘no’, but also that a complainant must and should physically resist penetration, in order to establish a lack of consent.

“The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.

“The judgement was so flawed as to require a retrial; his decision was unjust because of serious procedural irregularity and multiple errors of law.”

Following her conclusion regarding the original case and standard of proof that had been applied, Ms Justice Russell concluded with her recommendation for family court judges sitting in “cases where serious sexual assault is alleged to have taken place.”

“Currently there is comprehensive training on the procedural aspects of such trials and the implementation of PD12J in particular.

“Judges who sit in the family courts are not, however, required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised.

“Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction.

“I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges.

“This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach.”

Do you agree with Ms Justice Russell in her view that judges in both criminal and family courts should receive training on the approach to serious sexual assault cases?

Do you share the views of Kate Russel from Rape Crisis England and Wales, in that a “complete overhaul” is needed for victims of sexual violence and abuse?

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