Family court judge’s reference to intelligence of woman in rape complaint branded ‘unhelpful’

A family court judge who referred to a woman’s intelligence when concluding she had not proved her former partner had raped her made an “unhelpful” comment, a more senior High Court judge has said following an appeal.

The woman complained that Judge Marc Marin said he found it difficult to accept that an “intelligent lady” could not remember when it allegedly happened – and appealed.

She said the implication of the remark was that “only stupid women can be raped”.

Mrs Justice Knowles reviewed decisions made by Judge Marin at a recent appeal hearing in the Family Division of the High Court in London.

She has upheld an appeal by the woman and says another judge should consider the case.

Mrs Justice Knowles said, in a written ruling published on Friday, that the “intelligence or otherwise” of a sex assault victim was “nearly always irrelevant” to the “reporting of an assault to the authorities”.

She said barrister Charlotte Proudman, who represented the woman, had focused appeal arguments on the way that Judge Marin had approached a “fact-finding task” with “respect to” an “allegation of rape and non-fatal strangulation”.

Mrs Justice Knowles said her “primary focus” has been on the “judge’s decision making” in relation to that allegation.

She said Dr Proudman’s argument that Judge Marin had “failed to stand back and consider the significance of the findings he had made about the parties’ sexual relationship and set these against the other findings he made about the father’s behaviour” had “real traction”.

Mrs Justice Knowles said, although Judge Marin had a “stated awareness of the need to consider if there was a pattern of abusive behaviour”, he had “fallen into error by failing to stand back and look at the big picture”.

She said she was satisfied that woman’s appeal should be allowed for reasons relating to Judge Marin’s failure to look at the “big picture”.

Mrs Justice Knowles said the case should be remitted to another judge who should decide whether a further “fact-finding hearing” was necessary

She said Dr Proudman had been “highly critical” of Judge Marin for “adopting what she described as stereotypical thinking about the way a victim of rape should have behaved”.

Mrs Justice Knowles said, given her conclusions relating to Judge Marin’s failure to look at the “big picture”, she had no need to “dwell” on that “issue”.

But she made “one observation”.

“I regard the judge’s comment in… his judgment that the mother was intelligent in the context of her failure to seek help about the father’s sexual behaviour at the time it occurred as unhelpful,” Mrs Justice Knowles said.

“The intelligence or otherwise of a victim of sexual assault or of any assault in the context of an intimate relationship is nearly always irrelevant to the reporting of an assault to the authorities.

“Victims of whatever age, race, sexuality, appearance, intelligence, and background often have the greatest difficulty in reporting when an assault has occurred because of shame, fear of being disbelieved or fear that the process of reporting an assault will itself be traumatic.”

Mrs Justice Knowles said her “observation” did not mean that Judge Marin’s finding about “rape and non-fatal strangulation should not stand” – since he had given other detailed reasons “grounded in the evidence” for coming to his conclusions about those two issues.

A barrister representing the woman’s former partner had told Mrs Justice Knowles that Judge Marin’s remark had been “misconstrued”.

Sima Najma said Judge Marin was not implying that only stupid women could be raped. She said the appeal should be dismissed.

Mrs Justice Knowles also considered a second appeal, by another woman involved in another case, overseen by a different family court judge. Mrs Justice Knowles dismissed the other woman’s appeal in that case.

Lawyers involved had asked Mrs Justice Knowles to consider wider legal issues relating to rape and sexual assault allegations made in family courts.

Mrs Justice Knowles considered whether judges needed more training.

She said family court judges were required to have “Judicial College training” in relation to “sexual assault awareness” and to attend “training programmes on domestic abuse”.

“I have reflected very carefully on what it is appropriate for me to say on this matter,” she said.

“Judicial training is a matter reserved to the Judicial College.

“In my view, the college is best able to assess what training is needed for family judges determining factual disputes between parents about the nature of their relationship, especially where those disputes concern allegations of sexual assault.”

She also considered “definitions” of rape and sexual assault used in criminal courts.

“In my view, the correct starting point is that the family court must not import criminal definitions as an aid to fact-finding,” she said.

“Its focus … is to determine how the parents of a child behaved towards each other so as to be able properly to assess risk and determine the welfare issues in each case.”

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