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.

26 thoughts on “Does it matter what we call it?

  1. Rape is a crime. False allegations wreck lives – REALLY wreck lives. They usually surface when a parent starts Children Act proceedings to see their children, and strangely they’ve never been reported to the police for the police to investigate properly.

    Since LASPO and the reduction of Legal Aid, various allegations of domestic abuse and indeed rape have risen dramatically, and this was predicted beforehand:

    and it’s not confined to this country:

    These are crimes and must be tested to the criminal standard. When it comes to allegations of historic rape, where there was no report to police and no mention until Children Act proceedings are started by the other parent, it’s not surprising the court looks on them very suspiciously.

    The next, very pertinent question is whether the parent who is wanting to see their child and suddenly accused of rape of the other parent when they apply to the court is also being accused of wanting to rape the child? If not, then it’s not relevant and the court should disregard it.

    If the allegations is found to be false, then we have a resident parent who has made a false allegation of a very serious nature against the other parent in an attempt to frustrate contact. Clearly this parent is not fit to be the primary carer if they won’t support the child’s relationship with the other parent, would you advocate a change in residency and supervised contact for the false accuser?

  2. I am reminded by the above discussion of the R-word of Hamlet’s famous reply to Rosencrantz “… there is nothing either good or bad, but thinking makes it so”.

    But I don’t, especially as a man, wish to penetrate into the jungle of taboos you have very bravely exposed to the light, so I will not comment directly on the extremely fundamental and important issues you have raised (other than to thank you). However as Brian implies above, being falsely accused of violence or rape wrecks lives. Perhaps not as much as rape although as you say, evaluation of consequences is hard as some victims find it harder to recover from abuse than others. However I would class deliberately false allegations of rape (especially if designed purely as an act of implacable hostility and to frustrate contact) as at least as serious and potentially criminal as attempted rape.
    I will go slightly further too and ask another question in support of Brian and so many others who have strode into the family courts with their heads held high expecting justice for their children in the form of contact or contact enforcement only to be mentally, financially (and familially) abused to destruction by the Kafkaesque ineffectiveness (or worse) of some of the institutions involved. So my question is the following: I think we all understand and empathise with a perfectly decent and normal woman whose life is shattered and traumatised by an event such as rape or other forms of violence, but why is it that when so many perfectly decent and normal men have their own lives shattered by being systematically stripped of their children (and often their assets) by acts of conspiracy, falsehood and defamation (as well as by the humbug of the family court), those wounded men are simply written off as being angry and aggressive males and sent off on courses. How many implacably hostile mothers are sent on courses when their poisonous hearsay is debunked? Surely dismissing male victims of life-destroying and debilitating abuse and cruelty in this way is not a long way from the rapist’s “excuse” that “she was gagging for it”?
    So many men have been unable to see and be a part of their children’s lives thanks to a carefully contrived combination of lies to the court and lies to their children and the perpetrators of this abuse (not to mention their advisers) get off scot-free. There is something very wrong here. So may I also ask that in your next post you tackle a few more of the underlying taboos?

    • In my experience where a court has found a mother (or father) to have fabricated allegations with the aim of shutting the other out they come down hard on that parent, often with a change of residence – where that is realistic option. The ones sent on courses are the ones who are found to have been violent or abusive or whose behaviour is such that it requires treatment before contact can move on. I certainly don’t dismiss the significance for a parent of being stripped of their relationship with their children for no good reason. It is heartbreaking.

      • What you describe sounds exactly what one would hope for, although my own experience suggests that a) little interest is shown by the court if false allegations are not proven or obviously contrived and b) what you describe very rarely happens.

        When you say that those who are sent on courses have been violent or abusive, are you referring to women as well? And if so what courses are they sent on? Also, what proportion of cases in your experience in which women make unfounded allegations does the court take the steps you describe? Has this increased since the legal aid rules require violence to have ostensibly taken place before being granted?

        • Jerry,
          I think there is very probably almost no provision for female perpetrators courses, which is a problem.
          I don’t think I can give you a proportion, each case is different – and of course in some cases, the court may not go as far as saying an allegation is maliciously fabricated, it may be that it has been exaggerated or misremembered or perceived / experienced as more serious than it was.
          I don’t think it has particularly increased since the change in legal aid rules, but I base that on impression only – I can see that one might be anxious it might have increased. I think that from memory the number of non-mol applications has gone up since LASPO.

      • Robert Whiston

        Dear Familoo,
        I’d like to put your “Does it matter what we call it?” article on one of my blog sites, with proper accreditation, of course, as its a wonderfully balanced piece.

  3. I have been serially raped by my ex husband. It was not a matter of something I consented to at the time. It was a sexual act that was abhorrent to me for a very specific reason which could be evidenced. I said NO both before and during the rapes. At the time I did not classify it as rape, it was simply part of the violence and control he exerted over me. The first instance also occurred when I was heavily pregnant, which is not unusual.

    From following family court proceedings there seems to be a degree of ignorance in some courts about how a victim will disclose. I have yelled at the computer many a time after reading a judgement. I have been through family court and after being questioned I felt equally as bad if not worse than being raped. Hopefully the newish guidelines will help. Disclosure of abuse is very likely to be as I did, piecemeal. When you are in survival mode, you are concentrating on keeping safe not remembering detail. It is not until you are out of the situation that you become fully aware of all the abuse. For instance if I got a cold and consequently a cough, I will be bawled at for deliberately keeping him awake. It was not until another DV survivor spoke about how she did not dare yawn that awoke that memory.

    I agree Lucy there is give and take in relationships , but what happened to me was not a matter of being over tired , giving in and saying yes, it was non consensual sex which is always rape. It needs to be labelled what it is.

    • Thank you anon for sharing your experience.

    • Forgive me going over what was clearly a very painful time for you, but can you clarify a couple of things for us. Rape is indeed a serious crime, so did you report it to the police and was your ex-husband convicted of the crime you have described here?

  4. Walklikeacat

    What is the 6 allegations mantra?

    • oh, that a person alleging domestic abuse must set them out in a numbered schedule, but the gag is that there must be no more than 6 allegations meaning people have to do some bizarre trade off of the most serious allegations versus the most provable.

      • I mean, I get that once a schedule is in one might remove allegations that are plainly not going to be relevant to the task at hand – but it is artificial to limit the number before seeing the evidence.

  5. Hello Lucy

    Thank you for this thought provoking post. What’s the authority for the 6 allegations mantra? My searchess have drawn a blank.

  6. No women are interested in raping me.What can I do about it??

  7. In responses to my posts earlier in this article you acknowledge that the lack of courses for female perpetrators of domestic violence is a problem and you also indicated that you do not believe that false allegations of DV have increased since Legal Aid rules have changed (LASPO). You then indicated that Non-Molestation orders may have increased since then. I’ve just come across these two reports which indeed suggest that there is a problem with Non-Mols:

    These reports, based on Freedom of Information requests (FOIs) show absolutely staggering increases (often 100s of %!) in some areas.

    Considering the gender bias which seems to underly the prominence of reporting of DV when 40% of DV is female on male (according to ONS figures) as well as the poor outcomes and huge delays in family law cases occasioned by unfounded allegations of violence, what do you think should be done about it when huge numbers of dads and their children are kept from each other and even alienated from each other?

    Should men who have been deprived of access to their children as a result of mothers exerting overt coercive control and deliberately perverting the course of justice in the family courts, be claiming DV? Should they be applying for very specific Non-Molestation orders and even claiming Legal Aid in such circumstances?

    • Hi Jerry,
      I’ve read those links which are certainly concerning. I’d like to see the data / FOI responses on which they were based and to see what the picture is outside London and “oop north”.
      Whilst I don’t condone parents (mothers or fathers) falsely claiming dv in order to prevent contact I don’t really see that it would be constructive to characterise this as domestic abuse (in the same way that I think it is usually unhelpful for people to characterise an court application by a previously abusive parent as itself an act of abuse) and nor do I think it would be a basis for an application that is likely to succeed.

  8. To me the idea of lady teachers seducing and then traumatising husky lusting boys of 16 or 17 who are perhaps already in casual relationships is a joke. This idea that men and women are the same sexually is ridiculous and should be ridiculed.
    Political correctness gone completely barmy………….
    No man is going to run home crying to his mummy that he has been raped by a woman or women.Most schoolboys (me included when I was 14) could only dream of such bliss but alas I for one never” got lucky” !

    • Ian you are a dinosaur. Do stop embarrassing yourself.

      • Typical comment from a lawyer who has no legal argument to make ! I am 100% sure that the youth of today would overwhelmigly side with us dinosaurs and would ridicule the idea of being traumatised if an older woman seduced them ! I think you know in your heart of hearts that most teenage boys grab anything that is going ;young or old and boast about any “conquests” they achieve (or fail to achieve).They do not run crying home to mummy !
        Yes that view offends the politically correct who preach diversity but hate it if anyone does actually divert from the orthodox path laid down by blinkered theorists who see a world that fits in with their theories and not as it really is ! I am all for equality of pay and of opportunity between the sexes but not pretending that men and women are the same.

        • Again Ian, spectacularly missing the point. Well done.
          You misinterpret me as having no argument. In fact I just can’t be bothered to spell it out to you – and it’s my manor so I don’t have to. I am not going to permit any more of these intentionally provocative faux-dinosaur remarks.
          On yer bike.

  9. As part of their report on Violence Against Women and Girls the CPS have published the underlying data here.

    It shows that in 2014-2015 1.32% of rape defendants (60) were female.

    It also shows that 13.4% (13,154) of victims of violence against women and girls were men, that’s right, female victims who were infact male. A further 16.4% were of unknown gender!

  10. […] or guilt in the shadow of criminal sanctions, is discussed by Lucy Reed on her Pink Tape blog, in Does it matter what we call it? Recommended […]

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.