In our secret family courts, judges still don’t understand what rape means

Louise Tickle The Guardian 5 January 2020

It’s a scandal. Away from scrutiny, courtrooms are failing mothers by not taking evidence of sexual assault seriously

When is rape, you know, real, proper rape? Shockingly, in our family courts, it seems it’s only when you put up a fight and have the injuries to show for it. Never mind that you might clearly not consent to sex but in the end submit, terrified of what might happen if you were to actively resist.

In one recently reported case in the family courts a woman had complained to the court that she was a victim of domestic violence and had been raped.

Judge Robin Tolson ruled that because the woman had taken “no physical steps” to stop the man from raping her, “this did not constitute rape”, and consequently ruled against her.

Legally speaking, this means that when it comes to that same judge deciding whether or not, say, it is safe for a father to have contact with his child, claims of sexual violence will not be taken into account. Because, in the eyes of the court, that rape simply didn’t happen.

The fact that the family law system in this country is hidden behind a veil of secrecy means that these offensively vintage attitudes to rape and domestic violence can persist in courts that tens of thousands of separating couples must pass through every year. And it raises the question: what other outrageously sexist decisions are being made by out-of-touch judges behind closed doors?

The woman in the above case was so horrified at the judge’s finding that she challenged it via appeal. Unlike in a normal family court hearing, appeals are heard in public, and findings can be openly reported.

It is only because of this tiny chink in the family justice system’s protective shield that we are able to glimpse inside Judge Tolson’s courtroom, and see such attitudes for what they are. The usual level of secrecy in the family courts stifles investigation and reporting of what goes on.

I am typically contacted several times a week by women who say family judges have not taken their evidence of domestic abuse seriously. These women, often mothers fearful of the man they say abused and sometimes raped them, are without question retraumatised by a system presided over by some judges who have simply not accepted a modern understanding of what is and is not domestic abuse or sexual assault.

Women point particularly to difficulties in proving coercive control, a dangerous pattern of abusive behaviour that can indicate a risk of homicide. Coercive control is now a criminal offence; but in family courts, I am repeatedly told, judges are reluctant to name it, even if they find that emotional and psychological abuse has occurred.

Not only that. Women say that judges can even agree domestic abuse has occurred but not consider it serious enough to protect the victim and child from what we now know to be its damaging continuing effects: an abusive ex can easily continue their controlling behaviour throughout many years of court-ordered contact with a child.

If it were “just” scores of women telling me that this is happening, then these allegations would be exactly that: allegations. However, I recently sat through days of evidence in a family court case involving claims of domestic abuse and a dispute around child contact arrangements. The judge in that case made it clear he is unlikely to publish a judgment, and it is therefore unlikely at this stage that he will agree to allow the media to publish any part of what went on in court.

But I can say that I emerged from that courtroom astonished, dismayed and alarmed for very similar reasons to those that prompted the woman described above to appeal against a different judge’s findings about what constitutes rape.

In the year ending March 2019, more than 58,000 allegations of rape were made to police in England and Wales. It is an uncomfortable fact that many women are forced to have sex without their consent within relationships. It may be inconvenient for a family law system that operates on the principle that children are better off having contact with both their parents to acknowledge this truth. But surely any judge who grasps the mechanisms and psychological effects of coercive control should understand that you don’t need to be physically forced, there don’t need to be bruises, and you don’t need to scream, in order for it to be rape.

This is 2020, not 1920. Society has moved on. So have the criminal courts, which are open to scrutiny and would be instantly challenged should any barrister or judge articulate such archaic attitudes. Unless you have the courage and the cash to go to appeal, however, the family courts are essentially unaccountable to the public they serve.

Thanks to one of the most senior judges in the land coming firmly down on the side of the woman in the Judge Tolson case, she won her appeal. But it may well feel like a hollow victory. She will now have to relive every aspect of her evidence of domestic abuse and sexual assault at a new fact-finding hearing. This will be in front of a different judge. But that court will, once again, sit in private. How can we – or she – know what attitudes to sexual violence lie in store for her there?

• Louise Tickle is a journalist who specialises in social affairs and family law

https://www.theguardian.com/commentisfree/2020/jan/05/secret-family-courts-judges-rape-evidence-sexual-assault

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Abusive men using child contact as way to carry on subjecting women to domestic abuse

See quotes here and below from WAR SNS, and a mum called Becky who we helped get contact with her (then) baby after she was snatched by her father who she still lives with; Becky is fighting to get her back.

‘We are also aware of instances where women have suffered physical and sexual assault from their abuser when children are being picked up or dropped off,’ says campaigner

Thousands of domestic abusers are preying on their victims during meetings with their children ordered by the family courtsThe Independent can reveal.

Women are being subjected to coercive control, and physical and even sexual assault from their ex-partners when children are being picked up or dropped off. 

Campaigners say abusers also carry on terrorising their victims during child custody battles in the family courts and harassing them via emails, and report the problem is getting worse. 

Julian Watkins, senior research analyst at Safe Lives, said: “We started collecting data on this issue over the last couple of years because domestic abuse services and the survivors they support were increasingly telling us it is a problem.”

The domestic abuse charity has found abusive former partners use childcare arrangements to carry on targeting their victims in around a third of cases where children were cited as the reason for ongoing contact. 

Parents can face fines or even jail sentences if they do not make sure their child sees an ex-partner on a supervised or unsupervised visit when court-ordered contact is in place.

Angela* said the post-separation abuse her ex-husband has subjected her to has been even worse than the actual relationship. 

The 43-year-old domestic abuse survivor, who had one child with her former spouse, said she suffered emotional, financial and online abuse from him while they were together.

She said: “He was very aggressive towards me. It was an insidious thing. All of a sudden I realised I had no control over my life. I was basically a slave. Anytime I had an opinion that was different to him, he got angry. if I left a toy out, he went into a rage. I would be back terrified hiding in the flat with the child because he would be on the rampage and skulking around and ready to blow. 

“My money wasn’t my own. My thoughts weren’t my own. I had to check in with him on everything. He was living off me but if I went out and bought a lipstick I was a really bad person. He borrowed thousands of pounds that I never got back. He is very angry with the world. The world is against him. It’s all a conspiracy. Women are out to get him. We are all b*****s. We are all trying to trick the courts. 

“Part of the issue was my ex was using drugs and doing so in proximity of the child. I didn’t know he was taking drugs until very far into the relationship. He would leave lighters strewn around the room and weed out. With a toddler that is unacceptable. He would leave doors and windows open.”

She said her ex would send emails every few days threatening to get the authorities to take her child away after she left him. He was initially only allowed supervised contact with their child due to his drug use but is now allowed to have unsupervised contact.

Read more

Mother and two daughters recount horrors of domestic abuse campaign

“When he was in the home, he didn’t bother with our child but as soon we broke up, access was the most important thing in his life,” Angela recalled. “He would turn up late to contact with our child. He wouldn’t change his nappy. Later, when he was older, he would let him wet himself. He had to do a handover with staff at contact centres when the visits were supervised and he would get aggressive with them.” 

She said they have a contact book where they write notes to each other about practical issues but he has used this to write abusive messages to her. 

Becky*, another woman who was subjected to coercive control by her ex-partner, said he now has custody of their young child and has used childcare arrangements to continue the abuse.

The 47-year-old said: “After I left him, he put her in his car and said he wanted one last bit of time with her on his own and never gave her back. I drove four hours to see her on Mother’s Day for a meeting the court had scheduled, but he said ‘You are not going to see her’ and drove home. He was shouting at me and laughing. He mainly abuses me through emails – mostly he says I am crazy and a bad mum. He doesn’t think that, he says it because he knows it will affect me. She cries when it’s time to go back to him at the end of visits.”

Anne Neale, of Legal Action for Women, said: “Men have been empowered by the family courts being more in their favour to pursue more cases and be more adversarial than they used to be

“This creates a climate in which men feel more emboldened to harass women through the courts and continue exerting controlling behaviour through the courts. It is also linked to the wider fact that women are increasingly speaking out about abuse wherever it takes place, including through the family courts.”

The campaigner, who supports women going through family courts, argued the presumption in law that it is in the best interests of the child to have contact with both parents “enables” the family courts to override a man’s history of violence towards both the mother and children. 

The warning comes after more than 120 MPs wrote to the government in May demanding an inquiry into how family courts in England and Wales deal with victims of domestic abuse.

Lisa Longstaff, a campaigner who is part of the Support Not Separation Coalition, said abusive ex-partners use contact as an opportunity to often verbally and sometimes physically abuse the mother.

She said: “They continue exerting coercive or controlling behaviour with the pretext of making arrangements or cause problems such as making the mother travel long distances, or not returning the child at the agreed time. 

“Violent men also continue to exert control over ex-partners and their children through the family court, enabled by Children and Family Court Advisory and Support Service (CAFCASS), social workers and judges who routinely dismiss rape and domestic violence as either false or irrelevant to a child’s welfare. This is confirmed by official figures: 70 to 90 per cent of cases in the family court involve domestic violence or abuse, yet only one per cent of contact applications from fathers are refused altogether. 

Read more

Tens of thousands of ‘abuse victims at risk over NI number’

“Mothers who report rape or domestic violence are not only disbelieved and their children forced into contact with fathers they may be terrified of, they risk losing the children they are trying to protect. For spelling out the dangers the children face, mothers are accused of ‘parental alienation’ or of causing ‘emotional harm’ by ‘poisoning’ the children against the father.”

Sandra Horley CBE, of national domestic abuse charity Refuge, argued the way family courts deal with child contact cases involving domestic abuse places women and children at risk and called for “urgent reform” to ensure their protection is prioritised.

Refuge, the largest provider of specialist domestic violence services in the UK, is calling for a reversal of the legal presumption child contact in cases of domestic abuse is always in the best interests of a child.

She added: “All too often, violent partners are using child access meetings to continue their abuse. We see cases where violent partners fail to collect or drop off children at the agreed time, causing some women to fear the perpetrator has kidnapped their children, and disrupting women’s lives – causing them to miss work or cancel plans. Shockingly, we are also aware of instances where women have suffered physical and sexual assault from their abuser when children are being picked up or dropped off.”

A Ministry of Justice spokesperson said: “No child or parent should ever be in danger because of a partner’s access to their child, which is why we are reviewing the family court system to make sure they’re protected.

“We have also introduced legislation to ban abusers from cross-examining their victims in the family courts and throughout our review we have engaged survivors across the country to ensure we are doing everything we can to safeguard them further.” 

Children and Family Court Advisory and Support Service did not want to comment when approached.

*The names of the women in this article have been changed to protect their identity

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Cyprus rape case: on the day before sentencing Women Against Rape points to similar outrageous cases in the UK

We share the outrage of women in Cyprus protesting against the conviction of a 19-year-old British woman who faces prison after reporting gang rape by 12 Israeli men in Ayia Napa. We welcome the UK government’s concern at the unfairness of the trial. But where is the acknowledgement that rape victims in the UK also face prison if they are disbelieved?

The Cyprus police forced the woman to retract after nine hours of questioning without a lawyer; she was then charged for lying. The trial judge refused to hear evidence that the woman had been raped, stating “this is not a rape case, I will not consider whether she was raped or not.” 

We have worked with women in the UK who were prosecuted and imprisoned after receiving similar treatment at the hands of the British police. Some way through the investigation into their rape the police decided they did not believe them and turned the investigation against the women without even affording them any of the rights a defendant would have had, such as a lawyer. 

We raised this with Keir Starmer when he was Director of Public Prosecutions (2008-13) and was overseeing a review of prosecutions of women who are disbelieved. We insisted he meet the sister of a woman sentenced to three years in prison after being attacked on her way home by two strangers: there was compelling evidence of a biased police investigation and a biased trial. We also wrote to Starmer asking for the prosecution of a woman who was repeatedly raped, again by a stranger, to be dropped. Both women had been pressurised by the police to retract their allegations. The first refused, the second retracted – it made no difference, both were prosecuted and imprisoned.

We told the DPP and his successor Alison Saunders that the policy of prosecuting rape victims who are disbelieved skews police investigations and undermines women’s ability to report rape. It encourages the centuries-old institutional sexism of police and courts which has never gone away despite official pronouncements to the contrary. How else can we explain that 40 years since the birth of the modern-day anti-rape movement rape prosecutions are at an all-time low and still falling: 3% of reported rapes lead to a conviction granting rapists almost complete impunity.

Our warnings fell on deaf ears. Starmer, while claiming to stand with women against rape, refused to stand with victims once the police had disbelieved them. And so today, victims who are accused of lying face longer sentences in Britain than the woman in Cyprus does for the same ‘crime’ – often way longer than the average sentences given to convicted rapists.

We have helped to overturn some cases, proving how easy it is for victims to be treated as perpetrators. One woman had been raped at age 15 and charged with lying when police claimed to have found no sperm on her T-shirt where she’d said her rapist had ejaculated. Our support led to a second investigation by another police force who found the sperm and the man was prosecuted. The woman later sued the police for £20,000.  Another teenage girl who reported a sexual assault had her summary fine quashed – it had been issued when police decided they didn’t believe her. We don’t know how many other women are charged and fined similarly, and are too scared or unable to find the help to fight these injustices.

It is not only the criminal courts that are at fault. The family courts are even worse. Mothers who disclose rape and domestic violence by violent ex-partners risk having their children taken away and handed to the father, even when he has a record for rape or DV. The government is due to report on its review of family court treatment of DV victims.

Recent decisions by police and CPS that victims must hand over their whole mobile phone and social media history, medical and counselling records, and that these must be disclosed to their attacker has led to a further drop in rape prosecutions. Like in Cyprus, in most British cases it is not the rapists that are on trial but their victims.

It has been claimed that the Israeli men were let go because Cyprus wants to protect its political and economic relations with Israel. How much do politics influence court decisions in Britain and elsewhere? We don’t know. But we do know that powerful and well-connected men, like Harvey Weinstein whose trial in the US has just begun, are more likely to get away with it. On the other hand, whistle-blowers like Julian Assange whom governments want to silence because they expose rape and murder by the state, are assumed to be guilty of sexual offences even when they haven’t been charged. 

Women Against Rape can be contacted at 0207 482 2496 or war@womenagainstrape.net 

Cyprus rape case: on the day before sentencing Women Against Rape points to similar outrageous cases in the UK

We share the outrage of women in Cyprus protesting against the conviction of a 19-year-old British woman who faces prison after reporting gang rape by 12 Israeli men in Ayia Napa. We welcome the UK government’s concern at the unfairness of the trial. But where is the acknowledgement that rape victims in the UK also face prison if they are disbelieved?

The Cyprus police forced the woman to retract after nine hours of questioning without a lawyer; she was then charged for lying. The trial judge refused to hear evidence that the woman had been raped, stating “this is not a rape case, I will not consider whether she was raped or not.” 

We have worked with women in the UK who were prosecuted and imprisoned after receiving similar treatment at the hands of the British police. Some way through the investigation into their rape the police decided they did not believe them and turned the investigation against the women without even affording them any of the rights a defendant would have had, such as a lawyer. 

We raised this with Keir Starmer when he was Director of Public Prosecutions (2008-13) and was overseeing a review of prosecutions of women who are disbelieved. We insisted he meet the sister of a woman sentenced to three years in prison after being attacked on her way home by two strangers: there was compelling evidence of a biased police investigation and a biased trial. We also wrote to Starmer asking for the prosecution of a woman who was repeatedly raped, again by a stranger, to be dropped. Both women had been pressurised by the police to retract their allegations. The first refused, the second retracted – it made no difference, both were prosecuted and imprisoned.

We told the DPP and his successor Alison Saunders that the policy of prosecuting rape victims who are disbelieved skews police investigations and undermines women’s ability to report rape. It encourages the centuries-old institutional sexism of police and courts which has never gone away despite official pronouncements to the contrary. How else can we explain that 40 years since the birth of the modern-day anti-rape movement rape prosecutions are at an all-time low and still falling: 3% of reported rapes lead to a conviction granting rapists almost complete impunity.

Our warnings fell on deaf ears. Starmer, while claiming to stand with women against rape, refused to stand with victims once the police had disbelieved them. And so today, victims who are accused of lying face longer sentences in Britain than the woman in Cyprus does for the same ‘crime’ – often way longer than the average sentences given to convicted rapists.

We have helped to overturn some cases, proving how easy it is for victims to be treated as perpetrators. One woman had been raped at age 15 and charged with lying when police claimed to have found no sperm on her T-shirt where she’d said her rapist had ejaculated. Our support led to a second investigation by another police force who found the sperm and the man was prosecuted. The woman later sued the police for £20,000.  Another teenage girl who reported a sexual assault had her summary fine quashed – it had been issued when police decided they didn’t believe her. We don’t know how many other women are charged and fined similarly, and are too scared or unable to find the help to fight these injustices.

It is not only the criminal courts that are at fault. The family courts are even worse. Mothers who disclose rape and domestic violence by violent ex-partners risk having their children taken away and handed to the father, even when he has a record for rape or DV. The government is due to report on its review of family court treatment of DV victims.

Recent decisions by police and CPS that victims must hand over their whole mobile phone and social media history, medical and counselling records, and that these must be disclosed to their attacker has led to a further drop in rape prosecutions. Like in Cyprus, in most British cases it is not the rapists that are on trial but their victims.

It has been claimed that the Israeli men were let go because Cyprus wants to protect its political and economic relations with Israel. How much do politics influence court decisions in Britain and elsewhere? We don’t know. But we do know that powerful and well-connected men, like Harvey Weinstein whose trial in the US has just begun, are more likely to get away with it. On the other hand, whistle-blowers like Julian Assange whom governments want to silence because they expose rape and murder by the state, are assumed to be guilty of sexual offences even when they haven’t been charged. 

Women Against Rape can be contacted at 0207 482 2496 or war@womenagainstrape.net