Judge finds rape isn't rape unless the victim physically resists

This case is really shocking. Nothing else to add, all pps have covered it.

Thank you for the clarifications re "assisted giving evidence" and the McKenzie's Friend kirinm and Sonic !

This is horrific RedToothBrush!

"She's not alone.

www.theguardian.com/commentisfree/2020/jan/05/secret-family-courts-judges-rape-evidence-sexual-assault

In our secret family courts, judges still don’t understand what rape means

This article was written about the case in the OP and the wider picture of how the family courts are not giving justice.

We only know about the case in the OP because the press can report on appeals - they don't have access to original rulings. If the woman in the case hadn't appealed no one would ever have known about this judge saying its not rape if you don't resist. He might have ruled this on many other cases where the victim didn't appeal. But we have no way of knowing because there is no transparency or accountability.

So we don't know how many of these judgement by paid judges or volunteer magistrates are to an acceptable standard that reflects the law.

Add on top of this issues with legal aid so many many women are effectively completely on their own fighting this. If they don't have the knowledge to know that the ruling isn't fit for purpose nor the knowledge that they can appeal, they are completely fucked.

The whole system isn't fit for purpose and its vulnerable women and children who are suffering most as a result.

You don't need any qualifications to be a magistrate. You get 21hours of training and a legal advisor in court to advise you of the law. And that's it.

Then you could end up dealing with a domestic violence case and resolving who gets access to children.

More serious cases are supposed to be referred to a higher court.

Frankly I find the whole thing bonkers and do not understand how 21 hours is really sufficient to deal with some of the safeguarding issues that arise and have proper experience to deal with some cases.

A friend of mine is having a lot of problems with the family Court atm. I can't go into too much detail but here's a brief explanation.

I was shocked that most cases are heard by magistrates who are volunteers even in cases of domestic violence.

Having looked through her file at length and tried to be objective what jumped out at me was how her ex was using the court system and the police to coercively control her. Social services seem to have picked up on it saying that the ex was 'micro managing' her and this is even written on their report.

Her ex keeps raising vexatious claims against her to the point that she now documents everything she does and everywhere she goes for the court. He bombards social services over absolutely everything. Again this is referred to by social services.

He's asked in court for full explanations on how she spends her money, and is still trying to financially control her.

Yet the court still don't seem to have worked it out.

It has now been referred to a higher court but what has struck me has been the simple fact that as volunteers with only a little training the consistency of judgements is none existant and totally dependent on the magistrate you get. If they have no awareness of coercive control this is a massive issue because they should really be looking out for deliberate abuses of the system in line with the law.

It's only because of my intervention that my friend realises what's been going on. She thought she was going mad at one point. She now realises she has a few more options and understands the situation she is in better.

She's not alone.

www.theguardian.com/commentisfree/2020/jan/05/secret-family-courts-judges-rape-evidence-sexual-assault
In our secret family courts, judges still don’t understand what rape means

This article was written about the case in the OP and the wider picture of how the family courts are not giving justice.

We only know about the case in the OP because the press can report on appeals - they don't have access to original rulings. If the woman in the case hadn't appealed no one would ever have known about this judge saying its not rape if you don't resist. He might have ruled this on many other cases where the victim didn't appeal. But we have no way of knowing because there is no transparency or accountability.

So we don't know how many of these judgement by paid judges or volunteer magistrates are to an acceptable standard that reflects the law.

Add on top of this issues with legal aid so many many women are effectively completely on their own fighting this. If they don't have the knowledge to know that the ruling isn't fit for purpose nor the knowledge that they can appeal, they are completely fucked.

The whole system isn't fit for purpose and its vulnerable women and children who are suffering most as a result.

Is the issue that the father was "assisted" or that it was a McKenzie's Friend who did the "assisting"?

From reading the appeal judgment it seems that nobody is allowed to assist someone while giving evidence (usually the person would be in the box near to the judge and away from everyone else, including their own counsel etc.

I've never understood how/why so many men claim that the courns are stacked against them when it comes to divorce/children because it so very clearly isn't the case

It's that he was assisted with answering. You don't usually give evidence from counsels row but the witness box and if in the witness box, you don't have anyone around to assist.

That is appalling!!!

Equanimitas - technical question:

"he also allows father to be assisted by a McKenzie's friend when being examined - contrary to all accepted rules of evidence."

Is the issue that the father was "assisted" or that it was a McKenzie's Friend who did the "assisting"?

I find it so concerning that there are people like this, and judgments like this (the original ruling) happening in the Family Courts.

How many times has he done something like this and the women hasn't felt capable of appealing it?

@orangehue it's a shame that his apparent ignorance around domestic violence laws is not enough to question his abilities. Perhaps in future he'll reserve his judgments and study the law before coming to his conclusion.

It’s highly unlikely he’ll lose his position. There’s an independent office who deal with complaints about judges conduct. Judicial conduct investigations office (JCIO) and their hands are tied to what constitutes as a conduct issue- see the various rules and legislation they have to abide by.

His decision can be challenged but in this instance it’s not his conduct, he was making comments in relation to the case.

I agree it’s unfair.

This judgment (or rather the original one) honestly made me cry this morning as I was reading it on the way to work. That poor woman has been through so much and for that Judge to come up with justifications or excuses for the treatment she has endured.

How on earth is being thrown against a wall - difficulties in a relationship? She's always upset after sex (rape) because of her past. I am shocked at the things that he said.

I really hope he loses his position. I'm not entirely sure how that works with judges though. I'm a solicitor but don't think I could handle working in family law.

The Telegraph has picked this up here www.telegraph.co.uk/news/2020/01/22/female-judge-criticises-colleague-told-woman-wasnt-raped-didnt/

Interesting that the original judge is the same one that refused Tina Owens' divorce petition on the grounds that her husband's behaviour was not unreasonable www.telegraph.co.uk/news/2017/02/14/millionaires-wife-refused-divorce-judge-rules-beratement-affair/

Fucking ridiculous, there's no way he should be in Family Court

judges in criminal courts get the training that it's recommended should now be extended to family judges

There was me thinking the law on sexual abuse was part of your training as a judge.
My blood runs cold knowing that judges in family courts have had no training in such a basic area of law.

That's an absolutely damning report on that judge's actions from start to finish. Alarming that such a mess was allowed to happen in the court room. I have huge respect for the Appellant to continue surviving, never mind appealing, after what she was subjected to, not only by her ex but then by this (male) judge. The cost to her in humiliation, trauma, blamed and shamed, forced to talk in front of her abuser and denied any measures to feel safer, have her rape redressed as her fault.... this honestly could have ended in a suicide. I can only imagine how hard it was for her to walk back into a court room for the retrial.

Yep, appalling. I just hope this might lead to more training and awareness raising, as posited.

How hard is it for a judge to understand that when a woman says no and the man continues then that is rape? If the judge can't understand something that simple, then I suspect he is beyond help and ought to consider a new career.

This is terrible. Will we ever reach a stage where men like this are not judges in either the family or criminal courts?

Just disgusting, he won't be alone in his thinking and how he treats women.

I was just reading how many female barristers drop out due to pressure of childcare and difficult work schedules, this leads to a smaller pool to become judges, only 32% court judges are women.

"To be fair" - there was nothing fair about this case - there is no excuse for those attitudes and beliefs now. These 'senior judges' need to go.
Absolutely awful she was put through that court experience on top of everything else.