Sex­ual con­sent lies at heart of new trial

Ottawa Citizen - - NEWS - AN­DREW DUFFY aduffy@post­

A new trial has been or­dered for an Ot­tawa man who won ac­quit­tal on sex as­sault charges based on his hon­est be­lief that he could have in­ter­course with his wife any­time.

The Court of Ap­peal for On­tario said the judge in the case com­mit­ted a se­ries of er­rors.

On­tario’s high­est court said the hus­band, iden­ti­fied only as Mr. E., should not have been ac­quit­ted of sex­ual as­sault based on the be­lief — shared with his wife — that he could have sex with her when­ever he wanted. Among other things, the court said, it was not the de­fence he pre­sented.

“This was a cred­i­bil­ity case in which Mr. E did not raise the hon­est, but mis­taken be­lief in con­sent de­fence dur­ing the trial, and it should not have been con­sid­ered,” the ap­peal court ruled.

What’s more, the court said, to avoid con­vic­tion based on an hon­est, but mis­taken be­lief in con­sent, an ac­cused per­son’s view­point must be grounded in a fact sce­nario that could give rise to law­ful con­sent. That didn’t ex­ist in the case of Mr. E.

“To the ex­tent the trial judge based his ac­quit­tal on Mr. E.’s and the com­plainant’s shared be­lief would be a mis­take of law that can­not form the foun­da­tion for an hon­est, but mis­taken be­lief in con­sent de­fence,” the ap­peal panel said.

The ac­cused can­not be named be­cause of a court or­der that pro­tects the iden­tity of his wife.

De­fence lawyer Anne-Marie McEl­roy said she was in the un­usual po­si­tion of ar­gu­ing in favour of a re­trial on ap­peal af­ter her client’s ac­quit­tal. “The er­rors in law were pretty stark and dif­fi­cult to ar­gue against,” she said.

A new trial date has yet to be set. The ac­quit­tal made head­lines in Oc­to­ber 2017, when On­tario Su­pe­rior Court Jus­tice Robert Smith said the Crown had failed to prove the ac­cused had formed the re­quired crim­i­nal in­tent — mens rea — to sex­u­ally as­sault his wife in 2002. The judge ruled the man was not guilty be­cause the Crown had failed to es­tab­lish he knew his be­hav­iour was crim­i­nal in light of his be­lief that he had the right to have sex with his wife with­out her con­sent.

The wife tes­ti­fied that, dur­ing their mar­riage — they were joined in an ar­ranged mar­riage in the Gaza Strip — she con­sid­ered it her obli­ga­tion to have sex with her hus­band.

The cou­ple sep­a­rated in Jan­uary 2013, but had dif­fi­culty mak­ing child ar­range­ments work. Court heard it was dur­ing a dis­pute over child ac­cess that — af­ter speak­ing to a po­lice of­fi­cer — the woman came to un­der­stand she had the right to refuse mat­ri­mo­nial sex.

She sub­se­quently com­plained to po­lice about a 2002 in­ci­dent. She al­leged her hus­band grabbed her by the wrist, pulled her onto the couch, pulled down her pants and had sex with her even though she asked him three times to stop.

The hus­band de­nied ever hav­ing sex with his wife with­out her con­sent and specif­i­cally de­nied the in­ci­dent that led to the charges.

At that time, the man said, he had just un­der­gone a hair trans­plant. His doc­tor, he tes­ti­fied, had told him to ab­stain from sex for two weeks af­ter the sur­gi­cal pro­ce­dure and he in­sisted the al­leged in­ci­dent could not have hap­pened be­cause he had fol­lowed the med­i­cal ad­vice.

Shaun O’Brien, ex­ec­u­tive di­rec­tor of the Women’s Le­gal Ed­u­ca­tion and Ac­tion Fund, said the case high­lighted the need for early and on­go­ing ed­u­ca­tion about the is­sue of con­sent. “I think it’s re­ally im­por­tant to start at a young age and en­sure that th­ese prin­ci­ples are be­ing com­mu­ni­cated to boys and young men,” she said.

O’Brien said she was deeply con­cerned by the pro­vin­cial gov­ern­ment’s de­ci­sion to scrap the mod­ern­ized sex-ed cur­ricu­lum and to use a 20-year-old ver­sion while a new in­struc­tion pro­gram was de­vel­oped.


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