Recently, Women’s Aid told the BBC that in their view the Family Courts were not “safe spaces for domestic and sexual abuse survivors”, following a Family Court ruling on the nature of consent in the context of a rape allegation. The background was that in 2018 a father applied to the Family Court for a contact order with his children, in defence of which the mother alleged, inter alia, that the father had raped her. The Judge at first instance dismissed the rape allegation because the woman did nothing physically to prevent her former partner penetrating her. The woman appealed for several reasons and on appeal. Ms Justice Russell, sitting in the High Court, upheld the woman’s complaint and ordered a retrial.
This case brings into stark focus the difficulties faced by litigants in the Family Court when dealing with domestic violence and in particular proving refusal of consent to sexual relations. It has long been said that the removal of public funding of family matters in in 2013 exacerbated these issues and in the press can be found numerous examples of parties who have been required to face cross-examination from their abuser, when even being in the same room as an alleged abuser can be an almost impossible ask.
The Government’s current definition of the term domestic abuse (which now includes ‘honour-based abuse’, female genital mutilation and forced marriage) is:
“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to psychological, physical, sexual, financial, or emotional.”
One will immediately infer from this definition that the successful applicant must meet and beat a two-fold evidential barrier: firstly, proving to the civil standard (balance of probabilities) that they are a victim of one of more incidents and secondly, that the incidents complained of are either controlling, coercive or threatening.
But there also exists an invisible barrier which lies not in the definition of abuse but in the possibility of the judge unknowingly assessing evidence through the prism of his or her own preconceived views and ideas. Any preconceptions can be addressed by provision of appropriate judicial training, which every judge is required to complete, on an ongoing basis. This training is not, nor should it be, fixed. Rather, it is fluid and can adapt to circumstances. Indeed, Ms Justice Russell pointed out in her judgment that:
“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. Currently there is comprehensive training on the procedural aspects of such trials…
She went on to say that,
“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.”
Whilst there are undoubtedly shortcomings in the framework in which the Family Court operates, to brand that forum totally unsafe for domestic abuse victims is in the author’s view a step too far. It is designed to deal with everyday family matters as well as complicated issues, and part of that is to protect and respect the victims of domestic abuse as far as it is possible to do. Whilst there are mechanisms in place to do so, one should bear in mind that this framework is constantly evolving. Ms Justice Russell, having identified a failing, reacted by making a formal request to the Judicial College for it to include further training dealing with issues of consent in the context of domestic abuse, which is a welcome development by any metric and one which the powers that be will now follow up, hence the system evolves and improves over time.
What is also clear from this ruling, as it should be to every adult, is that a definite verbal refusal of consent to sexual relations made either before or during the event, regardless of whether any attempt is or can be made to physically prevent the act, is enough, and the other party must respect that or face the consequences. To coin a phrase, “No means No”, regardless of whether the verbal refusal is accompanied with a physical refusal.
If you would like to speak in confidence with Tanya or Richard, our specialist SNS family law solicitors based in Maidstone, you can call direct on 01622 23 88 54.