14:12, January 25 193 0 theguardian.com

2020-01-25 14:12:03
When judges don’t know the meaning of rape, there is little hope of justice

Harvey Weinstein is at last facing justice in a New York courtroom. As I hear in graphic detail the accounts of the women he allegedly raped and sexually assaulted, it’s hard to stop myself imagining what I would do if a 21-stone man suddenly reappeared naked and lunged at me after manipulating me to accompany him to his hotel room on false pretences. Scream? Fight back? Try to escape?

It’s impossible to tell unless you find yourself there. Our body’s response to acute danger is not rational: it releases a flood of hormones that trigger an automatic response over which the thinking part of our brain has little control. For decades, that response was understood as fight or flight. But that was a highly gendered understanding developed as a result of tests primarily done on men. (Women were considered too complicated as test subjects because of the hormone fluctuations associated with our menstrual cycles.)

Modern knowledge of neurobiological responses to trauma is far more nuanced. The fight-or-flight response is just one provoked by a complex cocktail of hormones our brain releases in extreme danger. There’s cortisol, for energy, but also natural opiates, which act to dull physical and emotional pain, corticosteroids, which reduce energy, and oxytocin, which increases positive feelings.

When a woman experiences sexual assault, she may fight or flee, but as a self-protection mechanism her body may also render her physically immobile – scientists refer to this as “tonic immobility” or “rape-induced paralysis” – and appear emotionless. It is the evolutionary equivalent to playing dead. Research suggests that up to 50% of survivors experience this during sexual assault. Additionally, the natural opiates inhibit survivors from encoding what happened into their memory, which makes it easy for legal defence teams to question their reliability as a witness.

The scores of women who say they have been assaulted by Weinstein describe this full range of response. Some tried to fight back, some escaped to the bathroom only to be faced with pounding at the door, others described how they “just lay there”, or “remember not having any fight” in them. All are common responses to sexual assault. But the “freeze” response can be appallingly mischaracterised as willing submission and plays into societal myths about what does and does not constitute rape and consent. “Why didn’t she scream?” asked one of the defence barristers in a Belfast rape trial two years ago, as if that is the only legitimate response to rape.

The legal definition of sexual consent is clear: it is given if someone “agrees by choice and has the freedom and capacity to make that choice”. Consent cannot be given when someone is scared or threatened, drunk, or asleep.

This definition is poorly understood by the public, particularly older generations. A third of people – 44% of over-65s – think it isn’t usually rape if a woman doesn’t consent to having sex, but there is no physical violence. A quarter of people – and one in three over-65s – think that sex without consent in long-term relationships is usually not rape. These attitudes undoubtedly filter into juries. Rape Crisis Scotland’s brilliant campaign, #ijustfroze, aims to educate people that a woman doesn’t need to physically resist for it to be rape.

But it’s not just some members of the public who do not understand what constitutes rape: neither do some senior judges. Last August, Robin Tolson, a male judge in his 60s, issued a family court judgment in a child custody case that suggested a woman had not been raped by her partner because she hadn’t physically fought back. She appealed, and her case was heard by high court judge Alison Russell.

Reading Russell’s judgment, published last Wednesday, requires a strong stomach. She is excoriating about her colleague, describing his approach to consent as “manifestly at odds with current jurisprudence”. She says: “The logical conclusion of this judge’s approach is it is both lawful and acceptable for a man to have sex with his partner regardless of their… willingness to participate.” Yes, you read that right: Tolson falls into the quarter of the population who think it’s OK for a man to rape his partner. Her judgment is filled with horrifying detail: Tolson did not let the woman testify behind a screen, allowed the man in question to solicit advice during his testimony, and implied, with no evidence whatsoever, that the woman was of a “neurotic disposition”. He dismissed sexually threatening texts – “If you don’t shut up I will stick my cock up your ass” – as sexting.

The only reason this case is in the public domain is because the woman in question appealed to the high court. Family court proceedings are heard in private and subject to stringent reporting restrictions that limit parents’ ability to talk publicly about what happened. This is to safeguard children’s privacy, but the sheer weight of the shroud of secrecy that engulfs the family courts means attitudes such as Tolson’s can persevere without scrutiny.

This is why Louise Tickle, a journalist who has long reported on the family courts, is campaigning for more transparency. Tickle points out that this isn’t the first time Tolson has been found by higher courts to have got it badly wrong on domestic abuse, and that he will have heard scores of similar cases whose judgments are not public. It’s impossible to know how far it goes. “I’m frequently contacted by women – and occasionally, men – who tell me family judges are presiding over appalling abuses of process when it comes to deciding what is and isn’t domestic abuse,” Tickle says.

Family court judges have an unenviable responsibility: they have to make balance-of-probability rulings about what happened between two parents behind closed doors, sometimes based on limited evidence, that determine how much, if at all, contact those parents have with their children, whose safety is paramount.

But Tolson has seen fit to use the lack of transparency in the family courts to – knowingly or unknowingly – perpetrate myths about legitimate responses to sexual assault and ignore the law on domestic abuse and sexual assault, issuing rulings that could put women and children at serious risk of harm. How can he ever be allowed to preside over a case again?

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