Family Judge criticised for view on sexual consent in rape case; ‘Woman took no physical steps to stop the perpetrator, she was not raped.’

Family judges will now receive training on sexual consent after a leadership judge’s judgment was found to be flawed; Judge Tolson stated that a victim must physically resist the perpetrator to establish a lack of consent. The judge concluded that because the complainant had not taken physical steps to stop the perpetrator from raping her, that it did not constitute rape. The designated family senior judge failed to understand the reality of domestic abuse, coercion and control; and that such abuse isn’t confined to physical violence.

The conclusion of the judge’s approach is that it’s acceptable for a man to have sex with his partner even if the partner has said no and has asked the man to stop- the complainant must physically resist being penetrated to further establish the lack of consent.

Now, judges who deal with cases involving serious sexual assault allegations in family proceedings will be given training that criminal judges receive. It is a sad indictment that such judges appear to live in a bubble and despite their intellect still have susceptibility to common and societal myths.

Societal Myths

There seems to be reluctance from juries in figures shown to brand young men as rapists or sex offenders. A chair member of the parliamentary group for missing children and adults charity, Missing People, comments that figures are a symptom of a societal problem. Ann Coffey comments: “Rape victims choose not to report for fear of not being believed. This reflects prevailing attitudes of society and therefore juries to women, who are often blamed for putting themselves in risky situations. Juries seem to view evidence through stereotypes.”

“There is still a dominance of rape myths in culture: if a woman has drunk a lot, she cannot complain if she ends up raped, or that it is only rape if someone has injuries.”

The media also exacerbates the frequency of false rape allegations. The media focuses on the small number of false allegations of rape, and therefore “perpetuates a public perception that lying about rape is commonplace when in fact the opposite is true,” Coffey added.

Common Rape Myths

Although both men and women are victims of rape, many myths are placed towards stigmatising women:

Rape occurs between strangers in dark alleys: This implies that rape can be avoided by avoiding certain places, and places blame on the victim for going to unsafe places. The majority of rape is committed by a person known to the victim, not strangers. Date/acquaintance rape is common, with victims being raped in their own homes.

Women provoke rape by the way they dress or act: This puts blame and stigmatises the victim, assuming that a woman who dresses a particular way is looking for sex. Consent is not implied from the way someone dresses or behaves.

Women who drink alcohol or use drugs are asking to be raped: Being vulnerable does not imply consent. If someone is unable to give consent or is unconscious due to drugs or alcohol, it is rape.

Rape is a crime of passion: This assumes that the defendant is incapable of delaying gratification or controlling sexual urges, as well as assuming that rape is an unplanned and impulsive behaviour. Psychologically, this myth minimises, romanticises and excuses rape- disregarding the elements of violence, humiliation, aggression and power. Research shows that people rape to feel power and control; not for sexual pleasure. Many rapists are involved in sexually satisfying relationships with partners at the time of rape incidents.

If they didn’t scream, fight or get injured, it wasn’t rape: Victims are afraid of being killed and co-operate, the influence of threat changes behaviour. Victims often recall feeling physically paralysed with terror. Reactions differ from person to person, much experience a form of shock after rape, recalling feelings of emotional numbness.

Women cry rape when they regret sex or want revenge: This reinforces stereotypes that rape victims are vindictive and untruthful. This stigmatises victims and undermines the support for seeking justice. During 2011-2012 the DPP and CPS referred all false allegations of rape and domestic violence. Out of the 5,651 prosecutions for rape, only 35 were false allegations.

Only women and gay men get raped: Men who rape other men are often heterosexual, and can have a relationship with a woman at the time of incident. Rapists rape men for needs of power, dominance and control.

Prostitutes cannot be raped: This provides an excuse for abuse, and further disempowers and puts sex workers at risk. The transactions sex workers negotiate with clients are for consensual activities, not rape.

If the victim didn’t complain immediately it wasn’t rape: This invalidates the experience of the victim.  Rape causes traumatic feelings of guilt; shock and shame. Many victims don’t come forward for considerable lengths of time after the incident took place.

It is marvellous news that all family judges are to receive refresher and updated training on serious sexual assault allegations in family proceedings, and one presumes this must include wider information and training on sexual physical and emotional abuse and exploitation.

There does however still seem to be a continuing problem in the recognition of abuse and rape generally.

Rape prosecution rate falls in UK

Rape charges have been dropping since 2015. Figures from the CPS show that the numbers of cases referred by the police for charging decisions fell by 32% in 2019.  This was despite the amount of rapes reported to police rising by almost 24%.

Rape is a difficult crime to prosecute, with the incident often occurring between two people in a private setting. Evidence beyond the wording of victims and defendants is vital. Digital evidence from phones is massively time consuming to investigate. In 2018 over half of all rape cases took more than 100 days to assign an outcome. Even if a suspect is charged for rape, the case may be dropped. If a case proceeds to court, a conviction is less likely today than it was a decade ago according to CPS statistics.

Less than a third of young men prosecuted for rape are convicted  

Following from a freedom of information request, the CPS released statistics showing that men aged between 18 and 24 across England and Wales are less likely to be found guilty than older men on trial, whilst young men accounted for more than a quarter of defendants.

The figures cover a five year period & detail:

  • The conviction rate in rape only trials involving 18- to 24-year-old men was 32% – the lowest of any age group.
  • The number of successful prosecutions against men aged 25-59 was higher – at 46%.
  • Of the 1,343 rape cases the CPS has taken against young men, only 404 were convicted
  • The conviction rate for 18- to 24-year-olds in all rape cases – including child abuse and domestic abuse – stood at 35% in the five years to 2017-18. The conviction rate in the same cases for men aged 25-59 was significantly higher – 49%

Police demand rape victim data, sparking privacy fears with campaigners

In some areas, police access personal records and data before pressing ahead with cases. Complainants are asked to disclose school or college records, health, counselling notes, data from electronic devices, and other documents. In London, the Met Police request access to:

  • social media
  • web browsing activity and content
  • instant messages
  • location data
  • emails
  • deleted data
  • images, videos, audio files
  • apps
  • contacts
  • documents
  • SMS messages

This can then be disclosed to the CPS and the defence. But access to victim’s records in rape cases, granted through statements, differs widely from police forces. For example, Merseyside police can request access to educational, counselling and social services records, and can speak to a counsellor or teacher; whereby in Gwent, no such information is requested.

Campaigners warn this intrusion will put people off going to the police, and that victims are advised that prosecutions will not be brought if they do not comply with access to personal data. Compromising material and request for wide ranging records can breach a victim’s privacy; resulting in unequal access to justice. The regulatory body Association of Professional Compliance Consultants expressed concerns regarding the disclosure of intimate reports on the likes of counselling, social services or education, used in sexual offence cases.

Katie Russel from the Rape Crisis charity, reflects: “Victims are all too often left with the impression it is them and their credibility that is under investigation, not the person actually accused of a serious violent crime.”

Sentencing

Sexual offences cover a number of offences prosecuted under the Sexual Offences Act 2003.

  • Rape: Cases are tried in Crown Court, and can be punishable by a life sentence.
  • Sexual Assault: This can be tried in either Magistrates or Crown court. A case will be tried in the Crown Court if it is particularly serious. Imprisonment can range from 6 months to 10 years depending on severity.
  • Assault by Penetration: Cases are tried in Crown Court, and convictions can also result in a life sentence.
  • Causing Sexual Activity without Consent: Depending upon circumstances, sentencing can range from 10 years to life imprisonment.

What compensation is available for the victims of rape and abuse:

The victims of rape and abuse are mainly interested in having the person who attacked or abused them paying for the injuries inflicted upon them criminally. If there is a criminal conviction the criminal court may award compensation but this is usually a fraction of the compensation would be entitled to through a civil action. There a number of ways the victims of rape and abuse can seek appropriate compensation:

Civil claim v the perpetrator

A claim for compensation relates compensating for the physical and mental harm caused to the victim but also out of pocket expenses such as lost earnings, future lost earnings, loss of opportunity, and compensation for psychological and pharmological treatment, care and nursing amongst other heads of loss.

The problem with such claims is the perpetrator must have assets worth bringing a claim against. In a large amount of such cases the perpetrator has very little therefore there is little point in prolonging or aggravating the continued suffering of continuing contact with a perpetrator.

Civil claim v the perpetrators employers or organisations who quasi employ such individuals

If the perpetrator was employed in a caring capacity for the victim, such as a teacher, social worker, scouts leader, religious leader or foster parent the claim for compensation can be brought against their employer. This is usually the best recourse to compensation as the employer will usually have a policy of insurance in place or will be a Local Authority with access to large sums of funds to meet such claims for compensation.

CICA

The Criminal Injuries Compensation Authority scheme exists to provide compensation for the victims of violent crime or abuse, who are unable to bring a claim through any other source. In order to bring a claim for such the victim must have reported the attack or abuse to the police and done what they can to help bring the perpetrator to justice. Such a report maybe many years after the attack or abuse took place, what is required is an express willingness to help the police with their enquiries.

Victims abuse compensation schemes

A number of redress schemes are now being considered and championed by various local authorities.  Such schemes are available in limited section of the country and have been set up to pay compensation to those that report abuse in certain children’s homes which have been found to have suffered from abuse carried out by staff in the past. Such schemes are supposed to offer survivors an alternative to going through the courts thereby simplifying the process and avoiding the re-traumatisation of victims.

If you require more information, contact Graham.Roberts@isonharrison.co.uk or alternatively call 0113 284 5141.