The woman claimed Judge Robin Tolson (pictured above) had ‘outdated views’
A mother who lost custody of her four-year-old son has won the right to appeal after she claimed a judge had ‘outdated views’ that her ‘abusive husband was not a rapist because she didn’t fight back’.
The woman complained to the court that she had been a victim of domestic violence and that the man had raped her.
Judge Robin Tolson ruled that ‘because’ the woman had ‘taken no physical steps’ to stop the man from raping her, that ‘this did not constitute rape’.
The woman has now claimed that Judge Tolson had ‘outdated views’, with the High Court judge now allowing her to appeal.
Ms Justice Russell indicated that she would publish the reasoning behind her decision to allow the appeal in the near future.
The couple had separated more than three years ago and the boy remained with his mother, judges heard.
Family court litigation began after the man asked to be allowed to spend time with his son.
The woman objected and said the man had been controlling and had raped her.
Judge Tolson, who was asked to make findings of fact relating to the woman’s domestic violence allegations, ruled against her after a private hearing at the Central Family Court in London in August.
The woman appealed.
The High Court (pictured above) has now allowed the woman to appeal the decision
Ms Justice Russell, who analysed the appeal at a public hearing in the Family Division of the High Court in London on Thursday, indicated that a fresh fact-finding hearing would be overseen by a different judge.
Barrister Catherine Piskolti, who led the woman’s legal team, told Ms Justice Russell that Judge Tolson had refused to make six ‘findings of domestic violence’ sought by her client.
Miss Piskolti said the judge had found that the woman’s allegations were ‘untrue’ and that she was ‘not raped’ and not ‘subject to a controlling relationship’.
She raised a number of concerns about Judge Tolson’s ruling.
One concern was that Judge Tolson had ‘outdated views’ and had been ‘significantly exercised’ by the fact that the woman ‘took no physical steps’ to stop the man.
‘The learned judge was wrong in impermissibly allowing his outdated views on sexual assault, and likely victim responses to this, to influence his findings and conclusions,’ said Miss Piskolti in a written outline of case given to Ms Justice Russell.
‘The learned judge found that because the appellant had taken no physical steps to stop (him) from raping her this did not constitute rape, or non-consensual sexual intercourse, or that because she did not take physical steps to stop him her evidence is not credible and therefore it did not happen.’
She added: ‘Either way, the learned judge’s approach was wrong.’
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