The judiciary has sought to cool public anger after a judge was denounced for ‘outdated’ views on rape, promising to create new resources to teach family judges about sexual consent.
Responding to an open letter to the president of the family division Sir Andrew McFarlane and lord chief justice Lord Burnett, the judiciary said that an online resource for family judges focusing on consent and stereotypes in sexual cases is being developed. Lady Justice Rafferty, chairman of the Judicial College, will oversee its preparation.
Induction and refresher courses for judges will also be updated to ensure these topics are fully covered, a spokesperson said.
Last month the High Court found that a judgment by His Honour Judge Tolson was ‘so flawed as to require a retrial’ and displayed ‘obsolescent’ views on sexual consent. The decision, in which Tolson J found against a mother of a young child in a case concerning allegations of domestic abuse and serious sexual assault, was called ’unjust’.
The Honourable Ms Justice Russell DBE, in JH v MF, found that the ‘judge’s conclusion on whether sex was consensual or not is wrongly predicated on the presumption that to establish non-consensual penetration the complainant should have physically resisted… The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.’
The remitted case will now be reheard by a different judge.
Earlier this month, family law specialists penned an open letter calling for immediate action to address issues raised in the judgment. The Gazette also understands that some family barristers have asked Tolson J to recuse himself from their cases.
A panel of experts, established by the Ministry of Justice in 2019, is due to report its findings on how family courts deal with domestic abuse and other serious offences shortly. The judiciary said the report is ‘likely to look at the role of all professionals engaged in domestic abuse cases. Its recommendations, including any relating to training, will be of importance’.