A v B (Appeal: Domestic Abuse) [2023] EWHC 1499 (Fam) (20 June 2023)

A v B (Appeal: Domestic Abuse) [2023] EWHC 1499 (Fam) (20 June 2023)

Dr Charlotte Proudman and Elisabeth Traugott represented a mother at an appeal hearing in the High Court that addressed issues of sexual coercion and submission within marriage. Despite finding the Recorder’s comments about the “inherent probability” of the mother’s allegations of rape to be “very unfortunate”, her appeal was dismissed. The mother is seeking permission to appeal from the Court of Appeal.

Appeal by mother against determinations of fact made within private law Children Act proceedings, in relation to her allegations of sexual abuse, domestic abuse and coercive and controlling behaviour. Appeal dismissed. 

The High Court set out at paragraph 18 the two grounds on which the mother was granted permission to appeal on the papers (Grounds 1 and 3) and a third ground (Ground 7) on which she sought permission at the hearing:

18. The grounds for this court to consider are therefore:

“Ground 1: It was wrong for the Recorder to find that the likelihood of the Appellant being raped by her husband was low because:

a. “she was an educated English teacher”;

b. she knew that her husband was devoutly Muslim when they married;

c. if the Respondent had wanted to rape her he would have done it on their wedding night when he accepted that she was too nervous to consummate the marriage;

d. the Respondent would have continued to rape the Appellant after C was born, the last occasion when the parties were sexually intimate. 

In making these comments the Judge applied rape myths and applied a higher standard of proof in rape in partnerships to stranger rape cases.

Ground 3: It was improper for the Recorder to find that the Appellant submitted to sex multiple times a day freely and willingly where the Respondent admitted that:

a. their marriage was arranged and they were married within two months of meeting; 

b. on their wedding night (when the marriage was not consummated) he told the Appellant that she could only speak to the imam and to the Respondent’s aunt about their marriage; 

c. the Respondent would remind the Appellant to incant a prayers before sex; 

d. the parties never discussed contraception; 

e. the Appellant was expected to wash herself thoroughly each time they had intercourse.

Ground 7: It was wrong for the Recorder to conclude that the Appellant was not vulnerable or isolated given the circumstances of the parties’ marriage and the limited extent of the Appellant’s connections in this country.”

Full report can be read: Bailii.

Commentary

The mother alleged that she ‘submitted’ to sex in the context of a strict religious marriage and that this was a form of sexual abuse. The trial judge said, “The inherent probability of the mother silently submitting to forced sex, often multiple times a day, for several years seems to me to be low. I therefore need to consider whether there is cogent evidence to support that prospect.” 

At the appeal, Mr Justice Poole found that some of the trial judge’s comments were of “concern” and “particularly inapt” to the facts of the case:

43. Of more concern is the Judge’s assumption that the mother’s allegations of persistent sexual abuse were inherently improbable. The Judge had reminded himself of the possibility of a complainant “freezing with no protest or resistance” [20] and of the “nuances” that might arise from the fact that the parties were a religiously observant married couple [21], and that “everybody is different”, but he has here applied a generalisation which tends to suggest that it is unlikely that anybody would repeatedly submit to sexual intercourse without protest or resistance for such an extended period. Not only is that assumption inapt generally, it is particularly inapt to this case. The Appellant placed her silent submission over several years in a particular personal, cultural and religious context: she was living in an arranged marriage which led to certain expectations of her, she was sexually naïve, her husband was also sexually naive, she did not feel able to ask others (beyond perhaps the Imam) about what was happening sexually within their marriage. Whether or not the Appellant’s allegations of sexual abuse were supported by the evidence, it is difficult to accept the Judge’s generalisation that the mother’s continual silent submission over several years was “inherently” improbable. The allegations were certainly serious, but they were not inherently improbable.

Mr Justice Poole also criticised the Recorder’s assumptions about patterns of coercion and consent in relationships:

Respecting the Appellant’s Requests

45. At [92] and [93] the Judge noted that the Respondent had not sought to have intercourse on the wedding night, during the first few weeks of the marriage, or after the mother requested the cessation of intercourse in 2015. He concluded, “If the father felt that the mother’s body was his to use as he wished because that was his right, then it is unlikely he would have simply stopped having intercourse with her as soon as C was born in 2015”, and “I do not find this consistent with the acts of a man who sought to manipulate, exploit, or interpret religious text to make the mother feel that she ought to have sexual intercourse.” The danger with this reasoning, as Dr Proudman argued, is that it might be taken to assume that sexual relations between a couple and, in particular, elements of coercion, submission and consent, will be consistent throughout their relationship. The fact that the Respondent may not have overborne the Appellant’s will on one occasion, does not mean that he could not have done so on another.

The trial judge’s comments about the mother’s failure to protest or complain were found to be “very unfortunate”:

The Appellant’s Lack of Insight and Absence of Complaint

47. At [95] the Judge held, that “the inherent probability that the mother as an educated English teacher would have immediately felt totally unable to speak to anybody apart from the Imam or auntie once she had been married if she was raped on a frequent basis, seems to me to be low … I do not accept her evidence that she did not know sex was a matter of choice or that she did not know any better.”
48. In Ground 1 of the Grounds of Appeal it is said that it was wrong for the Judge to find that the likelihood of the Appellant “being raped was low because she was an educated English teacher.” It would indeed have been wrong for the Judge to have so found, but he did not. Nevertheless, he did refer to the Appellant’s education and profession when finding improbable her evidence that (a) she did not know that she had a choice not to submit to being forced by the Respondent to have repeated, frequent sexual intercourse with him, and (b) she did not feel she could speak to anyone about it. At first sight the Judge’s reasoning is objectionable. Many victims of sexual abuse within marriage or a partnership will find it difficult to speak to anyone about it. As the judgments in F v M and Re BB (above) show, there are many reasons why someone might submit to an abusive relationship without insight into what they are suffering until after the relationship has ended, or perhaps long after that. It is very unfortunate that the Judge referred to “inherent probability” in this context.

Notwithstanding these concerns, the High Court concluded that the trial judge “made no errors of law or fact that undermined or contaminated his conclusions” and that therefore the fact-finding judgment was not “rationally unsupportable.”

The entire judgment must be read to place the above comments into context.

---

Related barristers: Elisabeth Traugott, Dr Charlotte Proudman

---

Related practice areas: Family

---