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

[Equanimitas]

Fortunately this judgment puts that right, but WTF?

In brief, man with appalling history of violence within and outside the relationship, including domestic abuse in two previous relationships goes to court for child arrangements order after latest partner leaves. He isn't represented, mother's lawyer applies for leave for her to give evidence behind screens, judge decides it is somehow better for her to give evidence from counsel's row. He then decides the father should also give evidence from there, where he also allows father to be assisted by a McKenzie's friend when being examined - contrary to all accepted rules of evidence. Mother is distressed, on his own admission the judge couldn't hear chunks of what she said, and he then finds that he prefers the father's evidence in court because of his demeanour.

There were various threatening texts sent by the father to the mother, including one to the effect that "If you don't shut up I will stick my cock up your ass". The judge said that was probably just sexting, although even the father didn't put that forward as an explanation.

The worst of it comes from paragraph 34 onwards. There were a number of instances where the father raped the mother, it's accepted that she said No, but the judge finds against her because she could have done something physically to make it more difficult for this man to rape her. The appeal judgment refers in fairly restrained terms to the judge's outdated views, but it's fairly plain that the appeal judge is pretty appalled - e.g. this statement:

"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 (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent."

Unsurprisingly, the entire finding is set aside, and the judgment includes a recommendation that Family Court judges should get training on dealing with cases involving allegations of sexual offences. I really hope that the original judge is now the subject of some very serious investigations into his fitness to continue in office.

The judge won't be. If we are lucky he will have pressure put on him to retire.

On another note someone I know has had to explain to various male members of the judiciary what FWB, what a FB and sexting all are.

Thank God for the appeal judge. Horrendous for the woman to go through that.

Of course the original judge was male and appeal judge female.

Shocking the poor woman was put through that

Absolutely horrific. That poor woman. It’s hardly a surprise that rape convictions are so low if this is the sort of thinking in the judiciary. God it makes me rage thinking of all the women who have to endure this shit. Abused by her husband then abused again by the Court. Awful.

To be fair, this was a Family Court case not a criminal case, and judges in criminal courts get the training that it's recommended should now be extended to family judges. But really training shouldn't be necessary, the law is pretty firmly established anyway.

"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.

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.

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

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

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.

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

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.

"To be fair" - there was nothing fair about this case

I wasn't talking about this case, I was talking about the reference to criminal law.

Unfortunately the mother will have to go through another trial if the father pursues his claim for a child arrangements order.

In many ways, this is an indictment of the legal aid system. If the father had lawyers, I suspect they'd have told him long ago that he had no chance.

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.

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

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.

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.

@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.

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?

I like the way the appeal judge says "This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court... " You can almost hear her thinking "How the hell can anyone in that position fuck up to this extent?"

I really do hope that, as a minimum, he is currently being heavily pressurised to retire.

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"?

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.

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

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.