Judge criticises ruling against rape victim ‘who didn’t resist’
QC’S ‘obsolete views on consent’ affected case of woman who accused her partner over sexual assault
A FEMALE judge has criticised a male colleague’s “obsolescent” views after he ruled that a woman had not been raped by her partner because she “took no physical steps” to stop him.
In a written ruling, Ms Justice Russell said she granted the “vulnerable” woman an appeal for her case which had previously been overseen by Judge Robin Tolson QC in August last year.
The concerns raised by the case mean family court judges may have to undergo training on dealing with allegations of sexual assault.
Ms Justice Russell said the president of the family division at the High Court will ask the Judicial College, responsible for training Britain’s judges, to give them the same training as Crown Court judges on issues concerning serious sexual assault.
She said Judge Tolson’s approach led to the woman losing a legal fight centred on her son, claiming the judge had employed “obsolescent concepts concerning the issue of consent” while overseeing the case.
The court heard that the couple had separated more than three years ago, and that the boy remained with his mother.
Family court litigation began after the woman objected to her former partner spending time with his son, saying he had been “aggressive”, “intimidating”, “controlling” and “emotionally abusive”.
She also accused him of subjecting her to domestic violence and physical and sexual assault including rape “while the child was present in their home”.
However, Judge Tolson concluded that because the woman took “no physical steps” to encourage the father to “desist” during sex, this did not constitute rape and “could hardly be said to support a coherent account of rape”.
Judge Tolson ruled against the woman following a hearing at the central family court in London last August. Ms Justice Russell granted the woman’s appeal and indicated that a fresh fact-finding trial would be overseen by a different judge. Catherine Piskolti, the barrister who led the woman’s legal team, told Ms Justice Russell that Judge Tolson refused to make six findings of domestic violence sought by her client.
She said the judge found that the woman’s allegations were “untrue” and that she was “not raped” nor “subject to a controlling relationship”. Ms Piskolti raised concerns about Judge Tolson’s ruling, saying: “The learned judge was wrong in impermissibly allowing his outdated views on sexual assault … to influence his findings and conclusions.”
Ms Justice Russell, who sits on the family division of the High Court, made headlines in 2014 after becoming the first High Court judge to be formally addressed as “Ms Justice”.
High Court judges are normally referred to as Mr Justice or Mrs Justice but Ms Justice Russell, who specialises in family law, was granted permission to update the traditional form.