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
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.’
5.There have been a number of recent cases in which judges have had to direct juries in cases where apparent consent, particularly of young victims or those in ongoing relationships, arises out of prior abuse
Crown Court Compendium Part I December 2019 Judicial College 20-16
WORKING EXAMPLES IN THE FAMILY COURTS:
Taking the example of “the mother often had sex with the father because she felt that if she did not, the father would kick off”. How should the law be applied to such an allegation?
First, deconstructing the allegation, it falls into three parts:
1) The mother often had sex with the father (this implies it was consensual);
2) Because she felt that if she did not (the consent is qualified);
3) The father would kick off (does this vitiate the consent?).
In this allegation, it would appear that there was nothing said or done to indicate to the father that the mother was not consenting to the sexual intercourse at the time – in criminal law there is no requirement to communicate a lack of consent (Malone  2 Cr App R 447).
To prove that “father would kick off” would require evidence from the mother where this has happened previously, or that the father’s behaviour is such that if he did not get his own way - no matter in what context - he was likely to “kick off”. Evidence would be required that the “kicking off” would be behaviour of a type that would place the mother in fear for her own (or the children’s) safety or at least cause her sufficient levels of anxiety to choose to have sex with the father rather than face the “kicking off”. This is more than the “exhausted wife” – this is a woman in fear. The question is, was her choice a free one?
Turning to the Crown Court guidelines (above):
“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.
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…”
For consent to be vitiated in these circumstances, does the fear have to be time and place specific? Is a general fear held by the mother that violence may be used against her (physical violence or verbal abuse) at that moment, or at a later date, enough to vitiate the consent? Is this “unwilling submission due to fear of worse consequences”?
Or, does the fear have to relate specifically to that particular imminent sexual act and that the worse consequences are limited to the fear that if she had not consented to it, the father would have gone on to have sex with the mother by force on that occasion?
Ms Justice Russell DBE in H v F ibid:
“…where a complainant's free choice was overborne so that they did not have a free choice; an example of which was when a complainant gave into a perpetrator's demands because she was scared that if she did not he would have sex with her by force.” 
In both circumstances therefore it seems a lack of consent must be arguable.
What about the mother who has sex even though she doesn’t want to because she feels obligated or under a duty?
The Crown Court guidelines state:
“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.”
Further guidance from Chapter 20 of the Crown Court Compendium:
“15. The prosecution must prove that W did not consent to the sexual activity alleged.
16.The prosecution must also prove that D did not reasonably believe that W consented.
17.The absence of consent may be proved by evidence of one or more of the following:
(2) fear, without threat or use of force
(3) D continuing after W made it clear that W did not consent
(4) express or implied threats*
(5) oppression (e.g. previous abuse)
(7) deceit as to the nature and/or purpose of the act
(8) deceit as to the identity of D.”
Crown Court Compendium Part I December 2019 Judicial College 20-18
What about the mother who feels pressured to have sexual intercourse because of the father’s controlling behaviour or his dominant character? These instances are also often cited in Scott Schedules as non-consensual sex or rape. Could this fall under the category of submission or oppression? The issue in these circumstances for the mother alleging a lack of consent therefore will be whether it can be proved that the feeling of pressure is borne out of oppression or submission from previous abuse. This will be a matter of what evidence can be adduced of the nature and history of the parties’ relationship.
The difficulties these cases raise is that in determining allegations of sexual abuse, the court is being asked to make findings based on evidence that is likely to be limited to one person’s interpretation of a situation against another’s. More is therefore required to assist the court, and that is likely to come from the context of the parties’ relationship. It is worth bearing this in mind particularly when judges are minded to direct that statements are to be limited to a set number of pages or that evidence is only to be produced between certain dates in the past. It is worth alerting the judge to the need for the court to be aware of the context of the relationship and the background when other evidence is limited or non-existent.
The oral evidence of the parties will play a key part in the proceedings and it may be that the Findings are determined almost entirely on the judge’s assessment of the oral evidence.
When drafting Scott Schedules containing allegations of sexual abuse, the issue of consent and what evidence is required to prove the lack of it or otherwise, must be considered. Thorough consideration of the wording of the allegations should be considered at the case management stage of a Finding of Fact hearing so that the court and the parties know exactly what is being alleged in respect of sexual abuse allegations, particularly if the allegations involve any type of sexual activity where there was a lack of consent. This should be explicitly alleged.
An anecdotal example of the need for clarity as to what is being alleged:
At a Finding of Fact hearing the father was facing two separate allegations of raping the mother and further allegations of “sexual abuse throughout the relationship where the mother had sex with the father under duress”.
In cross-examination, this question was put to the father by the mother’s counsel:
“Mother had sex with you when she didn’t want to, didn’t she? That’s a bit like rape isn’t it?”
Training on the concept of consent is clearly needed.
Final words from Ms Justice Russell DBE in H v F ibid:
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 and the implementation of PD12J in particular. 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. Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction. I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges. This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach.” 
Legal Update by Katherine Goss