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 The appeal judgment refers in fairly restrained terms to the judge's outdated views, but it's fairly plain that the appeal judge is pretty appalled - e.g. this statement: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.

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.

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.

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.

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