Judge was criticised for finding woman was not raped because she took ‘no physical steps’ to stop man

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get training on the “appropriate” way to deal with sex assault allegations after a woman complained about a judge’s “outdated views” on the definition of rape.

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

She said the judge 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 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.

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 last year.

The woman appealed and that was assessed by Russell in December at a public hearing in the family division of the high court in London.

Q&A Why has the charge rate for rape fallen in England and Wales? Show Hide The charge or summons rate for rape fell to one in 65, or 1.5%, of all cases reported to the police in England and Wales in 2018-19, according to the Home Office. The figure has dropped steeply since 2015-16, when one in seven, or 13.7%, of all cases resulted in a charge or summons. New figures from the CPS show the number of cases referred by the police for charging decisions fell again by 32% in the year to September 2019. A recent report by the Crown Prosecution Service inspectorate concluded the service was not to blame for a precipitous drop in rape charges, but that the system – and in particular police-led investigations – was under-resourced to “breaking point”. This is disputed by a coalition of women’s rights groups who launched a legal challenge against the CPS in September 2019. Rape is a notoriously difficult crime to prosecute primarily because it comes down to the question of consent, often in a situation where there are only two people. In these cases evidence beyond the word of the victim or defendant is seen as central to building a strong case. Digital evidence requested from complainants, such as data, location information and texts from phones, is time-consuming to investigate. In 2018, more than half of all rape cases took more than 100 days to assign an outcome. A charge or summons is one of the steps in proceeding to a trial. Even if a suspect is charged a case may be dropped; and if it proceeds to court a conviction is less likely than it was a decade ago. Caelainn Barr and Alexandra Topping

Russell granted the appeal and indicated a fresh fact-finding trial would be overseen by a different judge. She did not, however, explain the reasoning behind her decision. That was outlined in a written ruling published on Wednesday.

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

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 the ruling. One was that 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 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.”

Russell said passages in Tolson’s judgment made “concerning reading”, adding: “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. This judgment is flawed.”

She said: “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’, but also that a complainant must and should physically resist penetration, in order to establish a lack of consent.

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

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

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.”