Family court judges may get training on how to deal with sex assault allegations

Family court judges could get training on the “appropriate” way to deal with sex assault allegations after a woman complained about one judge’s “outdated views”.

The woman has won an appeal after arguing Judge Robin Tolson’s approach led to her losing a fight with a former partner centred on their son.

She said Judge Tolson had concluded that “because” she had “taken no physical steps” to stop the man, “this did not constitute rape”.

The High Court judge who oversaw the woman’s appeal has described Judge Tolson’s approach towards the “issue of consent” as “manifestly at odds” with “what is currently acceptable socio-sexual conduct”.

Ms Justice Russell has indicated, in a written ruling on the case, that family court judges could now get training on the “appropriate approach” to take when considering allegations of serious sexual assault.

The couple had separated more than three years ago and the boy remained with his mother, judges heard.

Family court litigation began after the man asked to be allowed to spend time with his son.

The woman objected and said the man had been controlling and had raped her.

Judge Tolson, who was asked to make findings of fact relating to the woman’s domestic violence allegations, ruled against her after a private hearing at the Central Family Court in London in August.

The woman appealed.

Ms Justice Russell analysed her appeal at a public hearing in the Family Division of the High Court in London in December.

She had granted the appeal, at the end of that hearing, and indicated a fresh fact-finding trial would be overseen by a different judge, but did not explain the reasoning behind her decision.

Her reasoning for allowing the appeal was outlined in a written ruling published on Wednesday.

Barrister Catherine Piskolti, who led the woman’s legal team, had told Ms Justice Russell that Judge Tolson had refused to make six “findings of domestic violence” sought by her client.

Ms Piskolti said the judge had found the woman’s allegations were “untrue” and she was “not raped” and not “subject to a controlling relationship”.

She raised a number of concerns about Judge Tolson’s ruling.

One concern raised was that Judge Tolson had “outdated views” and had been “significantly exercised” by the fact that the woman “took no physical steps” to stop the man.

“The learned judge was wrong in impermissibly allowing his outdated views on sexual assault, and likely victim responses to this, to influence his findings and conclusions,” said Ms Piskolti.

“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.”

She added: “Either way, the learned judge’s approach was wrong.”

Ms Justice Russell said passages in Judge Tolson’s judgment made “concerning reading”.

“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,” she said, in her ruling

“This judgment is flawed.”

She said Judge Tolson was a senior judge and a “leadership” judge.

“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,” said Ms Justice Russell.

“This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim.”

She said Judge Tolson should have been “fully aware” the “issue of consent” was one which had “developed jurisprudentially” over the past 15 years.

Ms Justice Russell said Judge Tolson had “apparently concluded” it was “necessary” for victims of sexual assault to report the assault or make a contemporaneous report.

She said it was now “explicitly accepted” that many victims would not do so, out of “fear or embarrassment”.

Ms Justice Russell added: “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 judgment was so flawed as to require a retrial; his decision was unjust because of serious procedural irregularity and multiple errors of law.”

Ms Justice Russell said she had made a recommendation about training for family court judges and had a discussion with Sir Andrew McFarlane, President of the Family Division of the High Court and the most senior family court judge in England and Wales.

“Judges in the family courts are regularly required to make decisions and find facts in cases where there is domestic abuse; this will include cases where serious sexual assault is alleged to have taken place,” she said.

“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.”

Ms Justice Russell said the family at the centre of the case could not be identified in media reports.

Judge Tolson analysed the initial family court hearing in private and his judgment was not made public.

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