Ms Justice Russell DBE of the Family Division of the Court of Appeal has overturned the judgment of Judge Robin Tolson in the matter of hj-v-mf a case involving allegations of domestic violence and rape. The Court of Appeal judgment was published today.
Judge Robin Tolson had ruled that the 4-year old son who resides with his mother be removed from the care of his mother to the care of his allegedly abusive father. The judge's reasoning was based on his belief that the woman was not raped because she did not take sufficient physical steps to fight off her alleged rapist.
The woman stated that the family court judge held outdate views on sexual assault which had influenced his decision to rule against her in the custody battle and in favour of her ex-partner, her alleged abuser.
The family court proceeding originally arose when the father of the child filed application at the Central Family Court in London because the woman, whose identity cannot be released for legal reasons, objected to her allegedly abusive ex-partner spending time with their four-year-old son citing domestic violence and rape. The couple separated three years ago, when their son was 1 year old and his mother has been his sole caregiver and attachment figure since then.
Judge Robin Tolson ruled against the alleged victim of rape and domestic violence because he concluded that “because” she had “taken no physical steps” to stop the man from raping her “this did not constitute rape”. The alleged victim claimed that Judge Tolson had “outdated views” about rape and sexual assault.
Judge Robin Tolson, who conducted the finding of facts hearing relating to the mother’s allegations of domestic violence and rape ruled against her after a private hearing at the Central Family Court in London in August 2019. The mother appealed this court order and judgment.
The mother attended the hearing and was represented by Counsel. The alleged abuser was made aware that he is the Respondent in the matter of the appeal, but he refused to attend the Court of Appeal hearing claiming that the appeal was not against him but against Judge Tolson. The appeal argument was that “The learned judge was wrong in impermissibly allowing his outdated views on sexual assault, and likely victim responses to this, to influence his findings and conclusions” because “The learned judge found that because the appellant had taken no physical steps to stop (her alleged rapist) 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.”
The mother’s counsel argued that: “Either way, the learned judge’s approach was wrong.”
It is pertinent to note that a woman’s inability to physically defend herself against rape is not evidence that the woman is lying or that rape did not happen. “Involuntary paralysis” or “freezing” have been found to be a highly frequent physiological and psychological reaction to sexual assault by experts. Furthermore, it is a scientific fact that women are not as physically strong as men so cannot be expected to be able to fight off a rapist or be punished for this inability. If the judge’s reasoning were to be followed, then it would mean that every rape where a woman did not or could not successfully physically deter her rapist, was not rape. This case, somewhat, echoes the horrors of the Ayia Napa rape case as it features the same victim-blaming model.
The case had a history of domestic violence featuring repeated police involvement. Upon the review of the evidence at the Court of Appeal, Ms Justice Russell BDE overturned the order and judgment of Judge Robin Tolson and directed that a retrial of the finding of facts hearing be conducted by a different judge at the High Court, the Royal Courts of Justice in London effectively moving the matter away from the Central Family Court. She furthermore stated that family court judges with conduct of cases involving rape and sexual assault allegations need to be given the same level of training given to Criminal Court judges, this being discussed with the President of the Family Division, Lord Justice McFarlane.
The full judgment can be found here: https://www.judiciary.uk/wp-content/uploads/2020/01/jh-v-mf-judgment.pdf
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