An Ontario Superior Court judge determined that a Muslim immigrant who was confirmed to have repeatedly raped his wife was not guilty of rape.
He was found not guilty by the court because he claimed to have the honest belief that he had the right to have sex with her whenever he wanted, even without her consent.
In a written ruling, Ontario Superior Court Justice Robert Smith said that the government failed to prove that the accused man had formed mens rea, or criminal intent, to sexually assault his wife in 2002.
The Palestinian woman, who became the man’s wife in an arranged marriage in Gaza, claimed he grabbed her by the wrist, pulled her onto the couch, and pulled her pants down and raped her despite her asking repeatedly to stop. It was one of many times she was forced to have sex with him.
The report, which was first published on the Ottawa Citizen, buried the lede. It referred to the accused man as an “Ottawa man.”
“I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so,” said the judge, who cleared the man of any wrongdoing.
The woman testified in court that she believed it her obligation to have sex with her husband in spite of her refusal to do so, because she didn’t know it was a crime for him to assault her. She told the court that she did not consent to sex on many occasions, but was under the impression he was able to have his way with her because they were married.
When a police officer informed her years later that she was well within her rights to say “no,” she filed the case against him based on the 2002 incident.
Her husband denied all charges and said he wouldn’t have been able to have sex with her in that year anyway, because he had a hair transplant and was told to abstain from having sex.
Judge Smith’s ruling on the case came after a five-day trial in June. ‘Marriage is not a shield for sexual assault,” he said, adding that “however, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt.”
Sexual assault campaigners are speaking out against the verdict, with the Ottawa Coalition to End Violence Against Women describing it as “disappointing.”
Carrolyn Johnston, the organization’s executive director, said: “Any sexual contact without explicit and ongoing consent is sexual assault — regardless of the relationship. He may have believed that he had a right to have sex with her as her husband, but Canadian sexual assault law is clear and was amended to include sexual assault against a spouse in 1983.”
Rape crisis centers in the city are now engaged in public education campaigns to make more women aware of their rights and understand the concept of consent.