A woman who said a judge’s “outdated views” on sexual assault led to her losing a family court fight with a former partner has won an appeal.
The woman complained that the man had raped her when they were living together.
But she said Judge Robin Tolson had concluded, following a private family court hearing, that “because” she took “no physical steps” to stop him from raping her – “this did not constitute rape”.
She said Judge Tolson had been wrong to allow his “outdated views” on sexual assault influence his findings.
A more senior High Court judge has now ruled that the woman was raped and described the man’s behaviour as “sexually and emotionally abusive”.
Mrs Justice Judd, who re-considered the case at a private hearing in the Family Division of the High Court in London, concluded, on the balance of probabilities, that the woman had been raped twice by the man.
The judge said, in a ruling published on Friday, that the woman’s evidence had been “consistent” and noted her “obvious distress” when recounting events.
The judge heard that the man and woman had separated more than three years ago.
Their son, now five, has remained in her care.
Family court litigation began after the man asked to be allowed to spend time with the boy.
The woman objected and said the man had been controlling and had raped her.
Mrs Justice Judd indicated that her fact-finding conclusions would help a judge make decisions on whether, and how often, the man should see the child.
Another High Court judge, Ms Justice Russell, had earlier decided that Judge Tolson’s decision should be overturned and the case re-heard.
Ms Justice Russell said Judge Tolson had “apparently concluded” that it was “necessary” for victims of sexual assault to report the assault or make a contemporaneous report.
She had described Judge Tolson’s ruling as “so flawed” and said: “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.”
Ms Justice Russell said family court judges were not required to undergo training on the appropriate approach to sexual assault allegations – and recommended that they should.
Judges have ruled that the people involved cannot be identified in media reports of the case.