17 February 2020
Sexual assault in the family courts: a practical approach.
Germaine Greer was criticised by feminists, academics and rape victims in 2018 at the Hay Literature Festival for making the following comments: "Most rapes don't involve any injury whatsoever. We are told that it is a sexually violent crime... [that] it is one of the most violent crimes in the world. Most rape is just lazy, just careless, insensitive. Every time a man rolls over on his exhausted wife and insists on enjoying his conjugal rights he is raping her. It will never end up in a court of law. Instead of thinking of rape as a spectacularly violent crime, and some rapes are, think about it as non-consensual - that is, bad sex. Sex where there is no communication, no tenderness, no mention of love…” Increasingly allegations of rape are now ending up in a court of law – the family court. Are the family courts equipped to deal with these allegations and is there a difference between alleging rape and non-consensual sexual intercourse? In private children disputes involving sexual abuse allegations, the mother (as it often is) is seeking to prove that the relationship was one characterised by sexual abuse perpetrated upon her by the father and that is a good reason to restrict or otherwise limit the time he spends with their children, because living in the abusive household has caused the children emotional harm. The father (again, as is most often the case) is seeking to prove that the mother is fabricating these allegations in order to restrict and limit the time he spends with their children, thereby causing the children emotional harm. When these disputes arise, Scott Schedules are produced for Finding of Fact hearings in private law children proceedings containing allegations of sexual abuse including allegations of rape, placing the District Bench (as it often is) in a quasi-criminal jurisdiction which the Court of Appeal has been clear should not be the case: “…as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.” per Lord Justice MacFarlane Re R  EWCA Civ 198 at 67 And that unlike criminal proceedings: “In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court's eyes open to such risks as the factual determination may have established.” ibid  However, there seems to have been a shift in how criminal law concepts and principles may be applied in the family courts in the two recent High Court cases of F v M  EWHC 3177 (fam) and H v F  EWHC 86 (fam): “While a trial in the Family Court cannot, and must not, set out to replicate a trial or to apply, or seek to apply, Criminal Law or statute it cannot be lawful or jurisprudentially apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or in other form were non-consensual.” per Ms Justice Russell DBE H v F  EWHC 86 (fam) at 47. And Cobb J in F v M  EWHC 3177 (Fam): “F had perpetrated a serious sexual assault on M. While there are powerful reasons why in the family court the Judge's description of events and behaviour should not strongly adhere to criminal law concepts and language (see / above), F has failed in this appeal to persuade me that the judge was wrong to refer to the assault, by reference to the Sexual Offences Act 2003, as 'rape'.”  In light of these two recent High Court cases the courts’ approach to dealing with allegations of sexual abuse in private law children cases is under scrutiny - not just for the way the law has been applied, but for the way the concept of sexual abuse within a relationship is approached by the family courts. Allegations of a sexual nature are usually either explicit: that the mother was sexually assaulted by the father on a particular date or dates and the incident[s] can be described in detail; or there is a generalised allegation that the mother suffered sexual abuse throughout the relationship sometimes including serious sexual assault. If representing the mother, preparing the evidence will be a matter of going through the history of the relationship and recording as much detail of the incidents that the mother can recall, with as much accuracy as memory will allow. Specific incidents of sexual activity that the mother alleges she did not consent to will usually be pretty clear in her mind, and she may well be able to recall the date, the time, and the location together with more specific details about the context of the incident – an account which can be recalled easily albeit painfully. Responding to such an allegation is often fairly straightforward: the occasion (date, time, locations etc.) may be accepted but the nature of the sexual act is not. For example, the father may accept that sexual intercourse took place, but will say that it was consensual. Alternatively, there may be a blanket denial in respect of the whole incident. Unspecified and unparticularised allegations often result in a blanket denial response from the father: that sexual intercourse/activity throughout the relationship was always consensual. There are cases where the Scott Schedule from the mother comes as a complete shock to the father, who never had any idea that the sexual relationship he thought he had enjoyed with the mother of his children was in her view, at times, non-consensual. An example: “The mother often had sex with the father because she felt that if she did not, the father would kick off”. Sometimes an allegation such as this is recorded in the Scott Schedule as rape, sometimes as non-consensual sexual intercourse, sometimes under a broader heading of sexual abuse and sometimes as sex under duress. Representing either party presents challenges in this situation. There is often no corroborating or contemporaneous evidence. Reports to the police or friends/family often only occur after the parents have separated and do not necessarily correspond in time with any particular incident/allegation. When the court is being asked to determine facts and the evidence is one person’s word against the other, e.g. the mother is alleging rape and the father is asserting that the sexual intercourse was consensual, the issue of consent is likely to be the key point of focus for the judge. Both parties will need to address this in their evidence. In H v F Ms Justice Russell sets out the approach to be taken with reference to criminal proceedings: “In respect of consent in the criminal jurisdiction, which should inform the approach in the Family Court, the authors of Blackstone's set out at B3.29 "Consent covers a range of behaviour from whole-hearted enthusiastic agreement to reluctant acquiescence. Context is critical. Where the prosecution allegation of absence of consent is based on lack of agreement without evidence of violence or threats of violence, there will be circumstances, particularly where there has been a consensual sexual relationship between the parties, where a jury will require assistance with distinguishing lack of consent from reluctant but free exercise of choice." The Court of Appeal Criminal Division considered that a direction along the lines of the direction of Pill J approved in Zafar (Cf. the Crown Court Compendium (July 2019), chapter 20.4, para. 4) may well be appropriate. It should be advisable for Family Court judges to remind themselves of this approach and direct themselves appropriately based on the relevant approach contained in Chapter 20.”  For ease of reference that passage is included here: 20-4 Sexual offences – consent and reasonable belief in consent ARCHBOLD 20-10 and 25a; BLACKSTONE’S B3.19 and 26 Legal Summary: 1.When the charges involved are those under ss.1–4 of the Sexual Offences Act 2003, the Crown must prove that W was not consenting to the act alleged. General consent cases: 2.Otherwise than in the exceptional cases under ss.75 and 76 [see below] the jury is to determine whether W was consenting, applying the definition of consent provided in s.74:‘For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice'.
- An absence of consent can therefore arise by reason of mere lack of agreement as well as by force, threat of force, fear of force, a lack of capacity owing to unconsciousness, sleep, drink or drugs: for capacity and voluntary intoxication see Chapter 20-5.
- The jury may need to be alerted to the distinction between consent and mere submission: see Doyle in which the Court of Appeal described the distinction between (i) reluctant but free exercise of choice, especially in a long-term loving relationship, and (ii) unwilling submission due to fear of worse consequences. In Zafar, Pill J directed that: ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner it is still consent.’