In Canada, a rape case with troubling implications
(See below for update.)
While we are all preoccupied with the election and the latest crazy thing Donald Trump has said, life as usual goes on -- including the ongoing assault on the presumption of innocence and defendants' rights in sexual assault cases, all in the name of combating "rape culture." And the latest instance of this assault is not from the annals of "campus kangaroo courts," where the accused do not have the legal protections afforded criminal defendants and do not risk a penalty worse than expulsion from school. It is an actual criminal case resulting in a prison sentence -- albeit in Canada.
On July 21, Mustafa Ururyar, a 29-year-old York University graduate student, was found guilty of sexually assaulting fellow grad student Mandi Gray, 28. The verdict was handed down by Ontario Court Judge Marvin Zuker in a non-jury trial, after six hearings in February, April and May. The alleged rape -- and I continue to say "alleged," because after reading the 180-page judgment which included excerpts from trial testimony, I see no grounds for a finding of guilt beyond a reasonable doubt or even by "clear and convincing evidence" -- happened in January 2015.
It was a classic he said/she said. Ururyar and Gray had been casually involved for two weeks (he told her he was in an open relationship, though Gray later testified that he seemed concerned about keeping their involvement a secret from his girlfriend and she began to suspect he was not being truthful). On the night in question, Gray texted Ururyar inviting him to join her at a bar where she was drinking with friends: "Come drink and then we can have hot sex." Uruyrar initially declined, saying that he was tired and still getting over a cold, but after another exchange some time later told Gray he was coming over. (She replied, "Oh, miss me that much, jk.") They spent some time at the bar, and then at another nearby establishment, drinking with a group of friends. When they were leaving around 2:30 a.m., Ururyar asked another woman in the group, identified only as Lacey, to come over to his apartment, but Lacey refused and left in a taxicab.
At that point, Gray's and Ururyar's accounts of what happened sharply diverge.
Gray's version: Ururyar suddenly became angry and verbally abusive, telling her that he had wanted to have a threesome with Lacey and that she should have made an effort to persuade Lacey to come along. Though shocked and upset, Gray still went back to Ururyar's apartment with him; she needed a place to sleep and "didn't feel comfortable catching a cab" by herself to her place because she was intoxicated and "vulnerable." As they walked, Ururyar kept getting angrier, screaming at her in the middle of the street, calling her a drunk slut and telling her he wanted nothing to do with her. When they got to his apartment, she sat on the bed while he continued berating her. Finally, he said, "This is the last time ever that I'm going to fuck you and you're going to like it." He grabbed her by the hair and forced her to perform oral sex, then raped her vaginally; terrified by his rage and psychologically worn down by his verbal abuse, she submitted without protest.
Ururyar's version: Gray was flirting with him all evening at the bar, twice reaching out to grope his thigh; he even asked her to stop because he was embarrassed by the public display. He did in fact want a threesome, having heard from a mutual friend that Gray was interested in having one, but his only reaction after Lacey left in a cab was to express his disappointment. Gray said, "Am I not enough for you?", to which he replied, "Yes, you are" and put his arm around her as they walked to his place. Once there, they stripped down to their underwear and got in bed together. That was when Ururyar told Gray that he wanted to end their relationship, mentioning that he was annoyed by her behavior at the bar -- specifically, the public groping -- and also that his girlfriend would be moving in with him soon. Gray burst into tears; Ururyar took her in his arms, she moved to kiss him, and they held and cuddled each other. Then, she initiated oral sex from which they moved on to fully consensual intercourse.
There was no independent evidence to strongly corroborate either version. Both Ururyar and Gray had sent ambiguous text messages referring to the night's events. Gray texted Ururyar the next day saying, "Last night was really fucked up," to which he replied, "Okay." She also texted a female friend asking, "If you don't consent to sex, but you don't not consent, I don't know what is that?" to which the friend replied, "That's rape." Five days later, Ururyar texted Gray again, unaware that she had already gone to the police with a rape complaint; his message read, "I am sorry things went as they did. I shouldn't have said and done some of the things I did. I was upset and felt wronged by you but that does not excuse my own mistakes."
It is quite possible that Gray's story is substantively true. If it is, I believe Ururyar's actions can be properly classified as sexual assault. Even if he did not overtly threaten Gray, his angry and aggressive behavior -- as described by her -- certainly sounds frightening enough to coerce someone into submission against their will (especially if that person is in a weakened state due to intoxication). Even prior to feminist-driven legal reforms, courts generally recognized that submission to a threat of violence is not consent; it is reasonable to extend this principle to a more general threatening situation.
On the other hand, it is also quite possible that Ururyar's story is substantively true. It's not particularly implausible. You don't even have to believe that, as Ururyar's lawyer Lisa Bristow suggested, Gray was deliberately lying out of vindictive spite. She might have retroactively reinterpreted the sexual encounter as coercive because she felt hurt and humiliated -- especially when, by her admission, her memories were clouded by alcohol. (It is also quite likely that Gray's perception was affected by feminist politics. Gray has stressed that she did not become an anti-sexual assault activist until after her experience with Ururyar; but she had previously worked with the Elizabeth Fry Society, which deals with issues affecting female criminal defendants and embraces a perspective that views sexual violence as an aspect of patriarchal oppression.)
It is also possible that the truth is somewhere in between. Maybe Ururyar was more verbally abusive than he admitted but not as angry and aggressive as Gray described; maybe Gray felt psychologically beaten down by his words but not threatened, and either initiated or went along with sex to "make things better," not to avoid potential physical harm.
In other words, there are many possible scenarios here -- certainly enough to raise reasonable doubt.
But, bizarrely, Judge Zuker resolved this dilemma by simply choosing to accept the entirety of Gray's account, dismissing various inconsistencies as the product of trauma, and to dismiss Ururyar's version outright. "I reject Mr. Ururyar's evidence," he stated flatly. "I cannot accept his evidence." The apparent rationale for this was that Ururyar's testimony was "at total variance with that of the complainant."
Judge Zuker categorically declared no less than ten times that various facts alleged by Ururyar "never happened." He opined that it was "incomprehensible" for Ururyar to paint Gray as a "seductive party animal," despite her text messages which could be seen as supporting this portrayal. (Gray had deleted these messages from her phone; she also never mentioned them to the police, ostensibly because she didn't think they were "relevant to him raping me.") He claimed to know for a fact that Ururyar's apology to Gray referred to sexual assault, not to a bad breakup.
The judge also rejected and openly mocked Ururyar's claim that Gray groped his thigh at the bar, despite her admission that at one point he asked her to stop touching him. He rejected as meaningless the testimony of Ururyar's roommate who said that he heard no shouting or raised voices on the night of the alleged rape, when Gray initially said Ururyar yelled at her in his room. (She later amended this claim to say that he spoke harshly.)
And he made this eyebrow-raising comment, in reference to Gray's text messages: "We don't even know what the phrase 'hot sex' means." Well, yes, I suppose it could have been a euphemism for playing Scrabble.
No less remarkable is the fact that Judge Zuker used his judgment as a vehicle for a sermon that, in the words of National Post columnist Christie Blatchford, "sounded as if borrowed from a college course on feminist thinking." He repeatedly denounced "rape myths" and "victim-blaming" and attacked "misguided conceptions of what constitutes a 'real' rape or how a 'real' victim of sexual violence should behave." He mentioned the "need to appreciate the interplay of power, gender, and sexuality," citing radical feminist authors such as Susan Brownmiller (whose 1975 book, Against Our Will: Men, Women and Rape, postulated that rape is "a conscious process of intimidation by which all men keep all women in a state of fear"). He even reframed standard defense arguments, such as stressing Gray's hazy recollection of the night's events, as covert tactics of patriarchal oppression -- handing control to Ururyar and letting him "write the script" while leaving Gray with "no voice [and] no power."
When Ururyar is sentenced on September 14, he could get a maximum of 18 months in jail. Meanwhile, at the July 25 bail hearing, Judge Zuker not only revoked the bail and ordered Ururyar to jail immediately but berated him in what Blatchford called a "sneering rant." He repeatedly stressed that he had already found Ururyar to be a rapist. He jeered at attorney Bristow's request to give Ururyar a chance to put his affairs in order, work on his Ph.D., and spend some time with his family and his fiancee. (Update: The order revoking the bail was reversed on August 3 and Ururyar was released pending sentencing.)
"He's not the victim here," Judge Zuker indignantly asserted.
But there is a distinct, non-negligible possibility that Ururyar was wrongfully accused -- and in that case, he is indeed a victim.
I recognize the very real possibility that Mandi Gray was raped by Mustafa Ururyar. (That she invited him to have "hot sex" earlier is not proof of consent later on.) I understand that it can be an extremely difficult, near-insurmountable task to prove, beyond a reasonable doubt, a very intimate crime in which the physical evidence indicates only sexual contact but can neither confirm nor rule out coercion or consent. The presumption of innocence means, like it or not, that most such crimes will go unpunished in criminal court.
However, I also know that false accusations are a non-trivial issue. And I know that in a climate in which young women are increasingly taught an elastic and subjective definition of rape, allowing them to retroactively reinterpret bad or regretted sex as nonconsensual, it is particularly risky to convict solely on the word of the accuser. Even more so if fact-finders are encouraged to view the complainant's behaviors that seem inconsistent with her claims as evidence of "denial" or trauma.
The war on "rape culture" is on a collision course with the basic principles of justice.
Update, August 5, 2016.
On August 3, Ontario Superior Court Justice Michael Quigley vacated Justice Zuker's decision to revoke Ururyar's bail and ordered him released. Quigley also appeared to openly question Zuker's impartiality; he noted that the number of references to academic texts on gender-based violence in Zuker's judgment was "a jaw-dropper" and that it "raises questions of having a predisposed mind."
Meanwhile, Canadian court reform advocate Lise LaSalle examines Justice Zuker's record in this long and very interesting post.