National Column: Judge acquits husband of rape. Why?

by Rosie DiManno

What if an accused, charged with beating a dog to death, told the court: I didn’t know that was against the law.

Preposterous, obviously.

Who would be unaware that such cruelty toward a defenceless animal is a crime?

Who would be afforded judicial latitude for ignorance?

The crime is the crime.

Now imagine instead that a man is charged with raping his wife. Actually you don’t have to imagine it because such a man went on trial for the alleged crime in Ottawa some four months ago. And was acquitted last week.

Neither husband nor wife understood that sexual assault – “rape” no longer exists in Canada as a specific charge – was an offence under the Criminal Code.

It was an arranged marriage, to which the woman consented reluctantly but dutifully, as was the
practice in her culture. Raised in Kuwait by Palestinian parents, arriving in Canada in 1989 as a teenager, age 22 at wedlock, after she withdrew from university.

She believed she had no choice. That is how some females still lead their lives of quiet desperation in this country, in our midst, in a kind of shrouded existence, denied basic human rights and treated as property.

Like a dog.

Couldn’t say no to her parents. Couldn’t say no to her husband when he forced her to have sex against her will.

In court documents, the woman is identified only as “Z.”

“I … accept Z.’s evidence that the accused believed that as her husband he had the right to have sexual relations with her when he wished,” Justice Robert Smith writes in his reasons for judgment.

“Z. testified that there were many instances during her marriage where she did not consent to having sex with the accused but that he went ahead anyway in the circumstances where they both believed he had the right to do so. She was unaware that she could stop her husband from having sex with her without her consent. Their sexual relationship continued in this manner from 1992 until Jan. 1, 2013.”

The marriage had been performed in Gaza. Children were born to them here.

In time it became an unhappy union and the couple separated in 2013.

A change had come over her husband, the woman testified, after he returned from a 20-month visit to settle family estate matters in Gaza. He became aggressive, had no patience and “was no longer kind to

Speaks volumes, that phrase, doesn’t it?

It wasn’t until later in 2013, when police attended at the couple’s home – they were arguing over access issues – that Z. discovered she could have indeed refused her husband’s sexual demands over all those years.

That has been the law in Canada since 1983. Prior to then, rape was considered an offence only outside of marriage, meaning a husband could not be charged with raping his wife and a wife could only have her spouse charged with indecent assault, common assault or assault causing bodily harm.

A year previous to the revised legislation, NDP MP Margaret Mitchell was mocked about the issue –
laughed at by other MPs – when she rose in the House of Commons and demanded the government take action to stop domestic violence.

Bill C-127, which came into effect Jan. 4, 1983, made sexual assault against a spouse an offence under the Criminal Code. A spouse could also be charged with aggravated sexual assault if the crime included a beating.

That was scarcely 35 years ago. In some patriarchal countries, it’s still not a crime.

Z. recalled one incident in particular that became the basis of the sex assault charge against her husband and it dated to an episode from 2002, when he grabbed her by the wrist, pulled her on the couch, tugged down her pants and had sex despite Z. asking him three times to stop.

“She closed her eyes and prayed for it to end and then took a shower,” Smith writes.

Now, anyone with experience of sex assault trials would instantly recognize the frailty of the case – so long ago, no witnesses, no independent corroboration, he-said she-said accounts.

Except the judge believed Z., found her entirely credible. “She answered questions in a straightforward manner. Her evidence that the accused believed he had a right to have sex with his wife was not contradicted. The accused acknowledged that he exercised control over his wife’s body by refusing to allow her to have an abortion when she became pregnant …

“I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believe that he had the right to do so.”

Z. told the court she fulfilled her connubial role because she believed it was her obligation as his wife.

By comparison, the accused “was argumentative and evasive when cross-examined and often did not answer the question posed. I find that his evidence was not believable and did not raise a reasonable doubt.”

Smith was especially skeptical about the husband’s claim that he clearly remembered not having sex at all with his wife during the period of the alleged assault – because he’d had a hair transplant and, he said, the doctor had told him to avoid sexual activity for two weeks. No medical evidence for that advice was presented; it’s nonsensical.

And yet. And yet.


Because the Crown had not proven mens rea – a guilty mind, the intention or knowledge of wrongdoing that constitutes part of a crime – beyond reasonable doubt.

Because he believed he had the right.

It is to weep. It is to rage against the madness of the courts.

Little wonder women don’t report. The standard of proof is too high. While it should not be lower for sexual assault, it sure as hell shouldn’t be higher.

This was not a woman caught in a web of lies. She didn’t collude to support her claim. She submitted because we clearly have done a wretched job of informing women about their rights. And then a judge found her credible narrative wanting, falling as it did within this crevice of perverse woman-hating culture.

The judge also acquitted the defendant on charges of assaulting his daughter – seizing her by the neck – and threatening the girl, though both she and her sister testified about how their father had returned from Gaza more fervidly religious, setting limits on what his daughters could wear, which resulted in family disputes.

“I will end you,” the girl testified her father had said to her in Arabic during the argument, after even the accused admitted he’d gone upstairs to “straighten her out.”

Girls and women: Who were they to challenge his authority?

The judge had prefaced his decision with this observation: “Marriage is not a shield for sexual assault; however, the issue in this trial is whether considering the whole of the evidence the Crown has proven the allegations beyond a reasonable doubt.”

Here, the doubt was profoundly unreasonable.

Rosie DiManno usually appears Monday, Wednesday, Friday, and Saturday.
Copyright 2017-Torstar Syndication Services

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