Does it matter what we call it?

A long and rather rambly post about allegations of sexual assault and rape in the context of family proceedings – I have written it in two sittings and have struggled with it greatly, not least as a result of a horrible head cold descending and clouding my thinking. But I have decided to post it anyway, including what I suspect are some repetitive passages – because I want it off my chest, and I know that many of my readers will offer constructive views on this difficult topic, even if they are views that disagree with my own. I don’t have the answers, I am really only asking questions.

It has been more than once when I have found myself working to a different definition of the term “rape” than the judge before whom I was appearing. What I once naively considered to be broadly uncontroversial terminology for a controversial act is apparently not even subject of consensus amongst the legal community. To be clear, I don’t practise in criminal law, and so I am talking about situations where this sort of allegation is raised in the Family Court, most often within the context of private law proceedings.

Of course the breadth and nature of conduct amounting to rape is the subject of much public debate and awareness campaigning – those who follow such public discourse are well aware that rape is more often carried out by those known to the victim than by chance by an unknown perpetrator in a dark alley, and that victim blaming remains prevalent. And, although the idea is anathema to some, many would say (if they were brave enough) that some sorts of rape are very different to others (for example the stranger / alleyway sort versus the rape within a relationship after previously consensual sex). The shrill response of course is that one should not attempt to grade some rapes as more serious than others – and whilst I see that we should not trivialise any sexual assault, it is unhelpfully reductive to treat every instance as identical. Each act, each individual perpetrator, each individual victim is unique, even if we see chillingly familiar patterns emerging.

But in legal circles at least, rape is understood relatively unproblematically as sex without consent (without all the “did she ask for it” and “its not rape if she was drunk” baggage). Or, to put it slightly more precisely :

  • Rape is the intentional, p*nile penetration of the v*gina, an*s or mouth of another without that person’s consent and without reasonable belief that that person is consenting.
  • A person commits rape if he intentionally penetrates the v*gina, an*s or mouth of another person (male or female) with the p*nis and that other person does not consent to the penetration and the penetrator does not reasonably believe that that other person is consenting
  • a person consents if he or she agrees by choice and has the freedom and capacity to make that choice
  • the complainant is taken not to have consented unless sufficient evidence is adduced to raise an issue as to whether the complainant consented. In certain other circumstances (involving deception) lack of consent is conclusively presumed.
  • (see Sexual Offences Act 2003)
  • I’ve edited some words with asterisks just to avoid some p*rn alarm going off on the interwebs

At least you’d think. But I’ve found attitudes to rape and sexual assault allegations in family proceedings surprising on occasion. I’m never quite sure if that is because it is I who sees things in too straightforward terms, or if it is the judge / my opponent who is struggling with the nuance. It is the same sense I get when dealing with coercive control, which PD12J now more than nods at but which it is extraordinarily difficult to get any judicial airtime for (particularly since the advent of the 6 allegations mantra which is now so problematically prevalent).

I think the difficulty lies in that gap between a definition on paper which seems clear and objective, and the real lived experience. One only has to look at coercive control and harassment  – the course of conduct, the build up of seemingly insignificant moments of behaviour – to see that one couple’s coercive control is another’s tolerable if not ideal state of existence. And indeed, what is now the complainants coercive control WAS once their very own tolerable if not ideal state of existence. If we are honest and look at our own relationships, past and present, I would guess we can all identify some thing we have done and some thing our other half has done that might be described as “Abusive” or “controlling”. Because relationships are dynamic, people are flawed, and rubbing along together for a lifetime can be tough, irritating, frustrating. Who doesn’t want a bit of control in their relationship, their life?

What I mean to expose when I explore this is not any suggestion that coercive control or “softer” forms of domestic abuse are not real, or that they are not problematic – they very much are. But to acknowledge – if I can without the hounds descending on me – that at the margins it may be very difficult to draw the line between the ups and downs of a relationship and a pattern of abusive behaviour. And because this sort of abuse is in part defined by its subjective effect on the victim of it, it may in many cases be very difficult to distinguish between behaviour that was experienced as abusive at the time and behaviour that has subsequently been reinterpreted that way (either maliciously or because human memory is neither immutable nor objective).

And I think there is a parallel with allegations of rape within a relationship. The infinite exchanges within a relationship, the give and take necessary to sustain a relationship, may sometimes include doing something one partner would rather not, but in that moment they decide to permit or to carry out the unwanted act for the sake of the other’s happiness or their own quiet life. And that may include sexual intimacy. Such is life. We trade many things for a quiet life, for the sake of a relationship – I dare anyone to deny it. And yet, there is a point where the giving in becomes an inability to resist, where the carrying on becomes knowing persistence in the absence of consent. But where is it? And how susceptible is the human memory, that thing that is so capable of rewriting our pasts without us even knowing it, to rewriting those moments of acquiescence into moments of assault, of abuse? Perhaps this is where the judicial reluctance I have sensed emerges from, the unspoken knowledge that in all our bedrooms we’ve done or been done to when we really weren’t in the mood? And again (it is always necessary to repeat it explicitly) none of this means I don’t think rape within a relationship happens or is somehow insignificant – but it may be difficult to identify with clarity and to prove. Law is clear. People are complex. However this is dangerous territory, for it begs the question of how reliable any trial process based upon oral testimony can ever be (don’t go there – but see some of Mostyn J’s speeches).

But. Where there IS an allegation of forced sex in a schedule of findings sought – what are we to make of it? In every day parlance “forced sex” equals sex without consent equals rape. There may in an individual case be an issue about whether an alleged perpetrator reasonably believed the victim consented, and there may in an individual case be an issue about whether a person “agrees by choice and with the freedom and capacity to make that choice” – but where a woman alleges “forced sex” against a former partner in the context of children proceedings this will basically equate to an allegation of rape as defined in the criminal statute – and that is so notwithstanding the evidential difficulties that are likely to exist in the absence of injury or contemporaneous report. Judges faced with this in a schedule often hint at the evidential difficulties that are likely to face the complainant, wondering if it is really pursued. In my experience, if it has got as far as the schedule it is usually pursued, not least because the thing gathers its own momentum in the face of judicial or opponent’s intimations that it is a heinous thing to make such a grave allegation on a whim or if untrue.

Sometimes forced sex in the course of a relationship is achieved with the use or threat of direct physical violence and as such is self evidently rape (if proved). However, it may also occur in the context of a particular cultural / religious background where a wife is expected (and expects) to submit to sex on demand as part of her marital duties. There may be a sense of duty, submission to family or community pressure, or an inability to exit a relationship due to total dependence on family or partner for financial and other support (perhaps in the context of unsettled immigration status) or fear of loss of care of a child. In those circumstances there need not be direct physical threat.

I have detected – on occasion – some judicial reluctance to characterise this second scenario as rape at all. But I suspect this is more about the evidential difficulties than the definition itself (it might be rape if you could prove it but how can you?). Perhaps it is because of the difficulty in distinguishing between “cultural pressure” leading to reluctant agreement / acquiescence and pressure so significant as to result in the negation of “consent” or the reasonable belief that it has been given. Or the perceived sensitivity of being critical of other cultures.

Yes, generally speaking, dropping the R-bomb causes ripples. And alleging the R-thing without giving it that name can also cause consternation. On one level this is absolutely as it should be – it is a grave allegation with potentially grave consequences in a family law context even where a prosecution is not pursued or is unsuccessful. But what is the right course for a legal representative dealing with a client who makes such complaints?

Of course, it is not so long ago that the criminal courts here considered that rape of a spouse was a contradiction in terms – only with the delivery of judgment in R v R [1992] 1 A.C. 599, HoL was it confirmed that there was no longer any deeming of consent on the part of a wife to sex with her husband – that had been so since 1736 when it was said that :

the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.

And so we see that the idea of a wife’s duty to provide sexual services to her husband are not exclusive to “other” religions or cultural backgrounds. It is firmly rooted in our own Christian tradition of marriage – fortunately ousted (rather belatedly) in 1992, a mere 23 years ago, when I was sitting my A-levels. Yes, really. That recently.

It is tempting to get into an argument with the judge or one’s opponent about terminology where it becomes controversial in private law proceedings, but I am not sure this assists anyone. On one level it matters little what you call this thing that one partner sometimes does to another. For the purposes of children proceedings what matters when finding facts is what in fact A did to B – and what effect it has had on the victim of it, who is usually the caregiver for the child. Whether a parent has forced (with physical violence or by some other means) the other parent to have intercourse, or has repeatedly carried on with intercourse in the full knowledge that the other person really did not want it but felt duty bound to allow it – that is likely to have had a profound impact upon them which may impact on the child or on the possibilities for contact – regardless of what label is attached.

I do not want to throw around a term like rape unless it is warranted, but I do think it should be used where the term fits the act complained of – we should not be frightened of the term and the evidential difficulties should not bear on the categorisation of the act. However, I have begun to think I should steer clear of this troublesome label, which whilst it should properly flag the seriousness of the act complained of in fact seems to become an unwelcome distraction from the effects of the act itself – but I worry that I shall be criticised for not calling a spade a spade if I take this route. The alternative it seems to me is to plead very specifically against the SOA 2003 in order to focus the judicial mind. A rape trial is not what all women in these scenarios want – what they want is to say “I can’t do this (contact) because of how he behaved”.

The fact remains, that there seems sometimes to be a reluctance to delve into the intimate area of sexual relations between one parent and another save where bound up directly with the use of restraint or other violence – a sense that sometimes this feels as if it is being relegated to that place where we put all the “bad things people commonly do in the course of a relationship and that therefore we don’t need to be concerned with”. You know, the place where we put “she cheated on me” and “he didn’t help with the chores” and “he got drunk at the wedding”. Blah blah.

Except it isn’t blah blah, if the allegation is true is it?

The thinking goes that marriage is all about give and take…we’ve all agreed to sex when we didn’t really want to haven’t we? #amiright? The inference is that with the benefit of post-separation hindsight the woman seeking findings of forced sex where she did not physically resist and was not physically restrained is reverse engineering reluctance into rape. And that might be right for one case, but it might be wrong in another. One can only tell by putting aside preconceptions and going back to what the evidence tells the court about the question of consent in this case – validly given and reasonably believed – or assumed in the absence of physical resistance – or express refusal?

And I know that for some the idea of a family court finding a man to have raped his partner (whether it is labelled as such or not) on the civil standard of proof is a thing we just should not do (although the topic of the standard of proof is a huge issue that I am not going to go into here – frankly if a rape allegation should not be tested against the civil standard why should any other form of conduct (abuse, neglect etc) relevant for child protection purposes be subject to that standard instead of the criminal standard?).

I am interested in what others think about this issue. It is a difficult one. I have dealt with cases where a rape has had profound consequences for the victim of it which directly bear upon the options the court has when looking at contact, and I have had others where the victim is impressively able to move on and manage rather better – and where actually the fact of the rape is not a matter that requires determination because it isn’t a barrier to the court dealing with the matter (although in reality that is often where the alleged perpetrator has so many other issues that contact is unlikely to progress to unsupervised in any event, or where the victim has a good support network to bear some of the stresses and practical responsibilities).

In some cases the victim names the act as rape, in others they resist that label. In some cases what appears to be a clear account of forced sex dissolves on cross examination into “I didn’t really want to and he must have known it” (although in some cases no words need to be spoken by either party because of a pre-existing threat which is hanging over the parties at the time the perpetrator initiates sex).

There are no easy answers to this, but the fact that this is so should not prevent us from trying.

I were wrong

Sadly, the Great Wheeze that was Q v Q is no more. It has been comprehensively dismantled by the Court of Appeal in K & H (Children) [2015] EWCA Civ 543 as a spot of creative but impermissible judicial law-making (see Suesspicious Minds here and judgment here). Of course that is a sport that all our best judges have indulged in from time to time, and our own President is not immune from its attractions (think Re X (A Child) (Time Limit : Surrogacy) [2014]).

Although it had it’s own neat internal logic : court = public body >> public body must act compatibly with art 6 (& 8) >> art 6 requires representation >> representation cannot be paid for by other means >> therefore court must pay to comply with duty – that chain of logic was broken by the Court of Appeal in a number of places.

So, “art 6 requires representation” went – there were (in this case at least) other ways of doing it and avoiding a breach.

And “court must pay” went on the basis that the court has no power to pay, Parliament having gone to some care to limit and define the circumstances in which the state will and will not pay for representation in drawing up a detailed legal aid scheme. In short : Parliament enacted LASPO ON PURPOSE (may un-God forgive them) – and this is a good old case of judiciary treading on Parliamentary toes, which I concede, having read the judgment, is pretty difficult point to counter.

And so : bluebell time is over in Kent (and indeed all over this fair jurisdiction), and up and down this green and pleasant land members of Her Majesty’s Judges are gritting their teeth, rolling up their sleeves and stepping down off benches in preparation for questioning vulnerable adults and children directly on behalf of the parties. I bet they are overjoyed (*sarcasm*) – this is something most judges have strenuously resisted and is utterly contrary to the idea of judicial neutrality that is entrenched in many more established members of the judiciary.

The times are a changin and so is the job of judge.

I suppose that it remains theoretically possible for the court to declare itself in breach of art 6 thereby clearing the way for an HRA damages claim – but such damages claims are unlikely to afford a practical cure to the problem for the poor old LiP. The best that declarations and damages awards are likely to be is an embarassment for the Government. Based on events to date I don’t rate the chances of the Court of Appeal’s plea for Parliament to reconsider or bad publicity arising from injustices resulting in a stampede to reinstate legal aid for even a tiny percentage of cases so unjustly caught by it.

A bit o bank holiday bloggin’

I’ve been remiss. I’m sorry. I have struggled lately to find time to blog. My priorities have been work and family (not that they weren’t before, but the working out of it has left rather less slack available for blogging of late) and The Transparency Project, and I have been recharging my batteries by carving out time to mess about with kids and in the garden before conking out at 8pm almost every non-school night again. Tonight however, after three consecutive 8pm bedtimes on the trot, I am still up at nigh on 10pm.

And whats more, I have a shiny new purple bike with a basket on the front, my garden is weeded, my pots are planted and the new chickens have started laying. And my garden ornaments have been re-hung with pink tape (of course).

All is well with the world and I shall resume blogging forthwith.