Case No. EWFC-48

complained that the judge had failed to properly analyse issues of consent and the father’s state of mind at the time of the alleged instances of sexual abuse. In essence, Mr Latham criticised the judge for failing to explicitly consider those matters on each and every occasion that he made a finding of sexual abuse. In contrast, Ms Lee highlighted references to consent in the judgment and submitted that the judge understood the concept of consent and had applied it when reaching his conclusions.38.Perusal of the judgment makes plain that the judge was fully alive to the issue of consent. With respect to the allegation of forced anal sex, the judge recorded that on occasions the mother did consent to anal sex in order to please the father. The judge distinguished this from times when the mother reluctantly acquiesced and thus the judge found the father to have forced anal sex on the mother and pressured her to have sex when he must have known or ought to have realised she did not want sex. Likewise, with respect to the allegation of anal rape, the judge rejected the father’s submission that the mother had reluctantly submitted to anal sex as part of a routine of consensual anal sex or that she had reluctantly acquiesced or that the father may have believed the mother was consenting. He instead accepted the mother’s evidence (that she was anally raped on four occasions and that she had said no and asked the father to stop) alongside evidence from her medical records. He also relied on paragraph 68 of the mother’s counsel’s submissions though he did not quote the contents of that paragraph. Paragraph 68 noted, amongst other factors, the father’s “obsession with anal sex” and the father’s admission that he continued more than once to pursue a sex act (inserting his finger into her anus) with the mother even when told to stop. Finally, with respect to the allegation of oral rape on multiple occasions, the judge noted that if there was consent to oral sex, this would not be rape. 39.Mr Latham was highly critical of the judge for stating in response to the clarification questions, “it is of course implicit that if I have made a finding of rape that there was no consent from the mother”. Was the judge required to address consent with respect to each and every occasion of alleged rape? I do not think that he needed to given the way in which he addressed both the allegation that the mother had been anally raped four times and the allegation that the mother had been orally raped by the father on more than one occasion. 40.Mr Latham was especially critical of the judge’s approach to the father’s state of mind when approaching the allegation of vaginal rape and for omitting to make reference to the father stopping penetrating the mother’s vagina when she said no and then leaving her alone. The judge recorded that the mother had omitted to tell the police that she had shouted to the father to get off her but he nevertheless accepted the submissions made by Ms Lee and found that, in other respects, the mother’s account of the alleged vaginal rape had been consistent over time. As he stated, the judge simply preferred the mother’s account having given due consideration to the factors which undermined that account (including the passage of time; the fact that the mother had not specifically said no to sex before the father penetrated her; and that she and the father would sometimes have sex to make up after an argument). Further, Mr Latham’s submissions ignored the mother’s evidence that the father had taken his penis out of her vagina and then tried to anally penetrate her, a stance she maintained despite challenge in cross-examination. 41.Drawing the threads together, I am unpersuaded that the judge’s approach to the issue of consent was flawed. He was not required to apply consent by reference to criminal concepts but to look at the intimate behaviour of the parties towards each other. In that regard, the comments of the Court of Appeal in paragraph 71 of