Social Policy in Ontario

Judge’s decision on consent and rape sends a strong message

Posted on July 25, 2016 in Child & Family Policy Context

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TheStar.com – Opinion/Editorials – Mandi Gray may have drunk with the man who raped her and gone to his home, but she didn’t consent to sex. The verdict? It was rape.
July 24, 2016.   Editorial

It’s never easy to get a conviction in a sexual assault case that turns on he-said, she-said versions of what occurred. That’s one of the reasons that few victims report an attack to police, never mind see it through a lengthy, torturous court proceeding.

Indeed, research by University of Ottawa professor Holly Johnson released four years ago showed how few sex crimes get reported and how even fewer are prosecuted. She found that 460,000 women told a Statistics Canada survey in 2004 that they had been victims of sexual assault, but only 15,200 reported it to police, 5,544 charges were laid, 2,824 cases were prosecuted and just 1,519 offenders were convicted.

The most difficult cases to prosecute are those in which victims’ claims aren’t found to be credible because of how they dressed, their earlier willing sexual involvement with the accused, the fact they had been drinking, or that they went back to the aggressor’s home.

But as of Thursday, the courts have a powerful new statement of why none of that should matter. The idea that any of those factors implies consent was rightly and forcefully rejected in the 179-page verdict handed down by Ontario Court Justice Marvin Zuker in the case of Mandi Gray and the man he convicted of raping her, Mustafa Ururyar.

In his well-argued decision, Justice Zuker painted a clear picture and important pathway for judges hearing cases in the future on what constitutes consent. Or more to the point, what doesn’t.

Justice Zuker found Gray, a York University doctoral student, most definitely had not given consent, despite the fact she had been drinking before the rape with the perpetrator, had had sex with him on prior occasions, had willingly gone to his home, and had texted him about “hot sex” before the evening had begun.

“It doesn’t matter if the victim was drinking, out at night alone, sexually exploited, on a date with the perpetrator, or how the victim was dressed,” the judge wrote. “No one asks to be raped.”

Justice Zuker said things that have long needed to be said. That they came from a judge in such a case makes it all the more important.

He found that Gray’s prior sexual relationship was not an invitation to have sex without consent anymore than a married woman’s sexual relationship with her husband is. “Society no longer tolerates the medieval idea of a woman signing away her rights over her own body.”

Nor did he find that passivity implies consent, citing studies of how victims often don’t resist, though they are not giving consent. “Each rape victim does whatever is necessary to do at the time in order to survive.”

Nor can consent be given in advance, as Gray’s “hot sex” text might seem to have implied. Consent must not only be given for the sex act to begin, but it can be revoked at any time, he wrote. “Without consent, ‘No’ means ‘No’, no matter what the situation or circumstances.”

He relied not only on testimony before the court and past cases, but on analysis of numerous studies on the psychological and physical state of rape victims to bust more myths that explain why Gray did not call out or fight back, why she stayed the night with Ururyar, a fellow graduate student, and why she did not report the rape immediately.

Unlike the Jian Ghomeshi case, in which the court did not find the alleged victims’ stories to be credible, Justice Zuker wrote at length about why it was Ururyar who was not credible in this case – even though he presented as a “nice” guy. “We cannot perpetuate the belief that niceness cannot co-exist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offence,” he wrote.

Justice Zuker has turned a page for victims of sexual assault. The takeaway? If you have a credible, consistent story, the court will believe you.

< https://www.thestar.com/opinion/editorials/2016/07/24/judges-decision-on-consent-and-rape-sends-a-strong-message-editorial.html >

Tags: crime prevention, featured, ideology, mental Health, rights, standard of living, women

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