The #MeToo move­ment on trial

When an On­tario judge con­victed Mustafa Urur­yar of rap­ing Mandi Gray, the de­ci­sion was hailed as a fem­i­nist tri­umph. A year later, it was quashed. The case that put the #MeToo move­ment on trial

Toronto Life - - Front Page - By Ni­cholas Hune-Brown

Mandi Gray Met Mustafa urur­yar in Jan­uary 2015, dur­ing her first year of a so­ci­ol­ogy PhD at York Univer­sity. Gray was an out­spo­ken Win­nipeg­ger with a tat­too of roses and a spi­der­web on her shoul­der. She’d spent some time vol­un­teer­ing with in­car­cer­ated women at Man­i­toba’s El­iz­a­beth Fry So­ci­ety, where she’d be­come flu­ent in the lan­guages of both law and ac­tivism. That win­ter, as York’s teach­ing as­sis­tants hur­tled to­ward a strike, a friend en­cour­aged her to tag along to a union meet­ing. Dur­ing the dis­cus­sion, she kept catch­ing the eye of one of the or­ga­niz­ers across the room. Mustafa Urur­yar was a first-year PhD stu­dent in the po­lit­i­cal science de­part­ment. He was born in Pak­istan, and his fam­ily had im­mi­grated to Van­cou­ver as refugees when he was a year old. At York, he’d thrown him­self into stu­dent pol­i­tics, join­ing the ex­ec­u­tive com­mit­tee of the TAs’ union. He was in­ter­ested in Marx­ism and fem­i­nism, and pos­sessed a dry sense of hu­mour. He had a long-term girl­friend in Montreal, but the cou­ple had agreed to open up their re­la­tion­ship while they were apart.

Af­ter the meet­ing, Gray joined the or­ga­niz­ers for a drink. She and Urur­yar chat­ted, and he bought her shots. Gray went home with him that night, and they spent the week­end to­gether. Over the next two weeks, they stud­ied to­gether,

had sex and ex­changed the kind of ten­ta­tive, lightly flir­ta­tious texts you send in the first days of an un­de­fined re­la­tion­ship.

On Jan­uary 30, Gray went to the Vic­tory Café in the An­nex to meet with a group of grad stu­dents. At the bar, just be­fore 8 p.m., she texted Urur­yar to see if he wanted to come. “I’m at Vic­tory,” she wrote. “Come drink and then we can have hot sex.” Urur­yar said he felt sick, but half an hour later de­cided to go af­ter all.

The group moved to an­other pub around the cor­ner and con­tin­ued drink­ing un­til the lights came on at clos­ing time. Gray asked if she could crash at Urur­yar’s place; she’d con­sumed seven or eight beers at this point, while he’d had four or five. When the stu­dents piled onto the side­walk around 2:30 a.m., Urur­yar in­vited Gray’s friend Lacey back to his apart­ment with them. She de­clined and jumped in a cab.

What hap­pened next de­pends on who you ask. Ac­cord­ing to Gray, Urur­yar had wanted a three­some, and when Lacey left, the night took a ter­ri­ble turn. He be­came hos­tile, en­raged that she hadn’t con­vinced Lacey to come back to his place. “He said that I was un­able to meet his sex­ual needs.” On the walk down Bathurst to Urur­yar’s apart­ment, she says, he be­came ver­bally ag­gres­sive. “I was an em­bar­rass­ment, I was em­bar­rass­ing my­self, I was a drunk, I was needy.” She be­came with­drawn, her self-es­teem wounded. She en­tered his apart­ment, went to his room and sat on his bed, ea­ger to just go to sleep, while he kept be­rat­ing her. “I re­mem­ber feel­ing re­ally scared be­cause he be­came some­body I had never seen. I had never seen that kind of anger.” She re­mem­bers him say­ing, “This is the last time I’m ever go­ing to fuck you, and you’re go­ing to like it.”

Gray says Urur­yar grabbed the back of her head and pushed his pe­nis into her mouth. He then pushed her onto the bed and had sex with her. “I was like, what­ever… I’ll just com­ply be­cause I don’t know what the reper­cus­sions of me say­ing no will be,” she said. When he was fin­ished, she rolled over, wept and fell asleep. The next morn­ing, she awoke and felt him mas­tur­bat­ing next to her. As he tried to guide her head to­ward his pe­nis, she re­coiled. “No, I’m not do­ing this,” she said. Then she put on her clothes and left the apart­ment.

Urur­yar’s ver­sion is very dif­fer­ent. At the Vic­tory, he says, Gray ran her hand up his thigh. He was un­com­fort­able with the pub­lic dis­play and asked her to stop. At the next bar, she did it again, and again he asked her to stop. Af­ter last call, he in­vited Lacey back to his place to con­tinue the party, but he says he wasn’t par­tic­u­larly dis­ap­pointed when she went home. He and Gray walked back to his apart­ment, their arms around each other’s waists, talk­ing about the frigid weather and the up­com­ing strike.

In his room, Gray moved to kiss him, and he claims he pulled back. “I moved away be­cause I wasn’t very happy about how she had be­haved at the bars. I said that I wanted to end the re­la­tion­ship be­cause it seemed like we weren’t com­pat­i­ble.” Gray started to cry. He moved to com­fort her and they be­gan kiss­ing. “I said that this should be the last time that we sleep to­gether or sleep in the same bed.” Gray be­gan to per­form oral sex on him. “Do you want me in­side of you?” he asked. “Yes,” said Gray. The two had sex, then spooned and cud­dled. In the morn­ing, he awoke and saw Gray at the foot of the bed, in her boots and parka, look­ing an­gry. She told him she felt used, then left the apart­ment.

Out­side, stand­ing at the street­car stop at Bathurst and Col­lege, Gray texted her friend My­lene at 9:43 a.m.

“Ah, why do I meet abu­sive psy­chos?” she wrote. “What hap­pened?” asked My­lene. “Mustafa is a psy­cho and I woke up and I know he fucked me and I didn’t want to since he yelled at me and talked down to me for 15 min­utes.” “Are you okay? That’s fuck­ing se­ri­ous.” “Yeah, I’m just re­ally fuck­ing mad. I woke up and he tried to push my head to give him a blow job.” “What the fuck? What an ass­hole.” “I know.” Gray con­tin­ued tex­ting on the street­car head­ing home.

“Ev­ery time he sees me, he just gets more abu­sive,” Gray wrote.

“He may say and do nice things time to time but what you just told me, he’s not re­spect­ing you at all,” wrote My­lene.

Gray re­sponded. “Like, if you don’t con­sent to sex but don’t not con­sent, I don’t know what that is,” Gray wrote.

My­lene wrote back right away: “That’s rape, for real.”

“Ugh,” wrote Gray. “I know you’re right. Ugh.”

What do you call it when you don’t con­sent to sex but don’t not con­sent? In the months since the Har­vey We­in­stein scan­dal, that kind of ques­tion has be­come part of the pub­lic con­ver­sa­tion. The #MeToo move­ment be­gan with clear-cut hor­ror sto­ries about a man who al­legedly bul­lied and raped young women, then used ev­ery ounce of his power to make sure his vic­tims stayed silent. Since then, the dis­cus­sion has evolved and ex­panded, forc­ing us to con­front un­com­fort­able ques­tions about more com­pli­cated, harder-to-clas­sify sex­ual en­coun­ters. In­stances that may have felt like flir­ta­tion to one party and co­er­cion to the other. In­stances where vast power im­bal­ances called into ques­tion the very pos­si­bil­ity of con­sent. In­stances where the vic­tim did not process what had hap­pened as as­sault un­til much later.

Gray didn’t im­me­di­ately know what to call her ex­pe­ri­ence. But she was cer­tain that she hadn’t con­sented to sex. That day, a few hours af­ter leav­ing Urur­yar’s apart­ment, she texted him. “Last night was fucked up,” she wrote. She wanted an apol­ogy or an ex­pla­na­tion—some ac­knowl­edge­ment of what had hap­pened. Half an hour later, he re­sponded with a sin­gle word: “OK.”

She erased Urur­yar’s con­tact in­for­ma­tion from her phone and un­friended him on Face­book. The next day, she went to Mount Si­nai Hos­pi­tal to com­plete a rape kit. Then she spoke to her stu­dent union rep and the grad­u­ate pro­gram di­rec­tor. They were sym­pa­thetic, but they couldn’t guar­an­tee that the univer­sity would pe­nal­ize Urur­yar. She was still un­sure if she wanted to re­port him to the po­lice. If she did, she’d be en­ter­ing a le­gal sys­tem where

Canada’s sex­ual as­sault laws are some of the most pro­gres­sive in the world, yet they do lit­tle to bring jus­tice to sur­vivors. Only three in 1,000 sex­ual as­saults end in a con­vic­tion

she wouldn’t have any con­trol. And yet she be­lieved that re­port­ing was the only way to make the univer­sity take her story se­ri­ously and to bar him from cam­pus so she wouldn’t bump into him.

Gray was weigh­ing her op­tions while the Jian Ghome­shi story dom­i­nated the news. At protests, ad­vo­cates for as­sault vic­tims marched with signs read­ing, “We be­lieve sur­vivors.” On­line, the hash­tag #been­raped­n­ev­er­re­ported elicited thou­sands of sto­ries from vic­tims who had re­fused to en­trust their well­be­ing to a jus­tice sys­tem they thought was fun­da­men­tally bro­ken. In that height­ened mo­ment, some­thing had shifted. “Ev­ery­one was en­cour­ag­ing me,” Gray told me re­cently. She fig­ured if she was ever go­ing to re­port, this was the best pos­si­ble time. She went to the po­lice on Fe­bru­ary 2. Thir­teen days later, Urur­yar was ar­rested and charged with sex­ual as­sault.

Like Emma Sulkow­icz, the Columbia Univer­sity stu­dent who car­ried a mat­tress around cam­pus to protest how the univer­sity had han­dled her sex­ual as­sault com­plaint, Gray wasn’t in­ter­ested in hid­ing. She or­ga­nized protests and ral­lies sup­port­ing as­sault vic­tims. She filed a hu­man rights com­plaint against York for their lack of clear pro­ce­dures for re­port­ing as­saults. She be­gan doc­u­ment­ing her ex­pe­ri­ence of the jus­tice sys­tem, first on her MacBook cam­era and even­tu­ally with a small film crew. And she waived the pub­li­ca­tion ban on her name. Her trial would not be a shame­ful ex­pe­ri­ence; it would be an op­por­tu­nity to high­light the bru­tal­i­ties of the crim­i­nal jus­tice sys­tem for sur­vivors of sex­ual as­sault ev­ery­where.

For most of Cana­dian his­tory, cases like Gray’s would never have gone be­fore a judge. Un­til the 1980s, a woman’s word was held to be so un­trust­wor­thy in Cana­dian law that it was im­pos­si­ble to con­vict a man of rape with­out cor­rob­o­rat­ing ev­i­dence. A vic­tim’s cred­i­bil­ity de­pended on her sex­ual his­tory, which could be ex­humed and pre­sented be­fore the court in vivid, hu­mil­i­at­ing de­tail. Rape within mar­riage didn’t ex­ist, ac­cord­ing to the law, as a man was pre­sumed to have a pro­pri­etary right to his wife’s body.

In the 1980s and ’90s, Canada’s crim­i­nal code was changed piece by piece to bet­ter pro­tect vic­tims and re­flect the re­al­ity of sex­ual vi­o­lence. To­day, rape shield laws re­strict ques­tions about a com­plainant’s sex­ual his­tory and ex­plic­itly pro­hibit the prop­a­ga­tion of harm­ful myths about the way a vic­tim should be­have. To­day’s laws say the ac­cused can­not sim­ply say he be­lieved some­one had given con­sent; he must demon­strate that he took rea­son­able steps to as­cer­tain this was true. A 1999 rul­ing by the Supreme Court made it clear that a de­fence of “im­plied con­sent” would not pass muster. A vic­tim does not need to say “no.” Si­lence can­not be taken as a sign of pas­sive con­sent.

Th­ese re­forms have made Canada’s sex­ual as­sault laws some of the most pro­gres­sive in the world, and yet they have done lit­tle to bring jus­tice to sur­vivors. Last year, the Globe and Mail re­ported that one in five sex­ual as­sault com­plaints were uni­lat­er­ally dis­missed by the po­lice, clas­si­fied as un­founded. Stat­sCan data sug­gests that of the cases po­lice do rec­og­nize, less than half re­sult in a charge, and only half again make it to court, com­pared to 75 per cent of phys­i­cal as­sault cases. Of those that make it to court, only half end in a con­vic­tion, af­ter a process that many com­plainants de­scribe as bru­tal­iz­ing and trau­matic. The end re­sult is a sys­tem in which only three in 1,000 al­leged sex­ual as­saults will ever end in a con­vic­tion.

De­fence lawyers say the prob­lem is that sex­ual as­sault cases are sim­ply hard to prove. They of­ten rely on mem­ory and sub­jec­tive im­pres­sions of body lan­guage and tone of voice. Danielle Ro­bitaille, one of the lawyers who rep­re­sented Jian Ghome­shi, ex­plains that the way a com­plainant is ques­tioned in court is rad­i­cally dif­fer­ent from how she’s treated out­side the court­room. “To move the po­lit­i­cal nee­dle you have to start with the as­sump­tion that peo­ple are telling the truth,” she says. “In a sex­ual as­sault trial, we start by ques­tion­ing if the com­plainant is telling the truth.”

Elaine Craig, an as­so­ci­ate pro­fes­sor at Dal­housie’s Schulich School of Law, says that some lawyers go well beyond pro­tect­ing the pre­sump­tion of in­no­cence. Her most re­cent book, Putting Tri­als on Trial, scru­ti­nizes how sex­ual as­sault cases are ad­ju­di­cated. Craig in­ter­views more than a dozen lawyers, ask­ing, “If you or some­one you cared about were sex­u­ally as­saulted would you rec­om­mend re­port­ing it and pur­su­ing crim­i­nal con­vic­tion?” Most of the lawyers say they would have se­ri­ous reser­va­tions. She also quotes nu­mer­ous tran­scripts of lawyers hu­mil­i­at­ing wit­nesses in bru­tal cross-ex­am­i­na­tions de­signed more to in­tim­i­date than to glean use­ful in­for­ma­tion—in one case, a lawyer asked a com­plainant more than 10 times how long it took to en­dure the pain of a bowel move­ment af­ter a vi­o­lent anal rape. Cru­cially, she finds Crown prose­cu­tors who ne­glect to in­ter­vene when rape shield laws are be­ing vi­o­lated and judges who fun­da­men­tally mis­un­der­stand the laws they are en­forc­ing.

The baroque mech­a­nisms of the le­gal sys­tem—the elab­o­rate rules, the silly gowns, the strict hi­er­ar­chies and ar­chaic lan­guage—all pro­vide a gloss of author­ity to a process that is, in the end, just a few hu­man be­ings with their own sym­pa­thies and prej­u­dices, sit­ting on worn fur­ni­ture in a flu­o­res­cent-lit room, de­cid­ing who they want to be­lieve.

When Mustafa Urur­yar’s trial was brought to court in 2016, Jus­tice Marvin Zuker had been mak­ing those de­ci­sions for al­most 40 years. Zuker had taken a few turns on his route to the bench. In the 1960s, he was a stu­dent sports writer who dreamed of be­ing a jour­nal­ist be­fore his fa­ther con­vinced him to go to law school. He taught at Ry­er­son and later OISE, where he still lec­tures, and co-au­thored two pub­li­ca­tions with the so­cial ac­tivist June Call­wood. Their le­gal hand­book, The Law Is Not For Women!, de­tails how rape cases of­ten put the vic­tim on trial. “Un­like any other crime in Cana­dian ju­rispru­dence, the sworn tes­ti­mony of the vic­tim was con­sid­ered doubt­ful ev­i­dence,” they wrote. “It was as though some­one who had been mugged was not be­lieved in court and had to prove that the mug­ging wasn’t in­vited.”

In 1978, Zuker be­came a judge in small claims court be­fore mov­ing to fam­ily court in 1990 and crim­i­nal court in 2012. He was pas­sion­ate about pro­tect­ing the le­gal rights of women and chil­dren and, over decades in fam­ily court, he had seen case af­ter case in which men hurt them. “If peo­ple have ac­cused me of any­thing, it’s of some­times be­ing a lit­tle emo­tional,” Zuker told me re­cently. “I’ve said what I thought, which is never a good idea if you’re a judge.” Once, over­see­ing a case in which an ac­cused mur­derer wanted visi­ta­tion rights, he had lashed out. “There’s no way I’m go­ing to al­low a mur­derer to see his chil­dren,” he told the man’s lawyer. “Of course, I had for­got­ten he hadn’t been con­victed yet.” His de­ci­sion was thrown out. In an­other case, three weeks af­ter Zuker granted a fa­ther visi­ta­tion rights in a cus­tody bat­tle, the man threw his five-year-old daugh­ter from an over­pass on the 401 be­fore jump­ing to his death (the girl sur­vived). Af­ter­ward, in a rare break from pro­to­col, Zuker spoke to the me­dia, telling them how hor­ri­fied and dev­as­tated he was. “I want peo­ple to ap­pre­ci­ate the stress that goes into th­ese kinds of cases and the dif­fi­culty in try­ing to de­ter­mine, quite of­ten, who is telling the truth.”

In 2016, he was near­ing 75, the manda­tory re­tire­ment age for On­tario judges. The Urur­yar case would be his last ma­jor trial. On Fe­bru­ary 1, the first day of the trial, Mandi Gray was hopped up on adrenalin. She was rav­en­ous, eat­ing an en­tire steak din­ner for lunch as she waited. Out­side court­room K at Old City Hall, a crowd of ac­tivists and York grad stu­dents, many with their own ex­pe­ri­ences of sex­ual as­sault, ar­rived to sup­port her. The Crown at­tor­ney was Jen­nifer Lofft, a fierce prose­cu­tor with ex­pe­ri­ence in sex­ual as­sault cases. Urur­yar had found his lawyer, Lisa Bris­tow, on a web­site that con­nects low-in­come Cana­di­ans with af­ford­able rep­re­sen­ta­tion. As a teach­ing as­sis­tant, he made just more than the limit to qual­ify for le­gal aid. He worked mul­ti­ple jobs—as a prep cook at Nando’s and a sales­man at a men’s cloth­ing store—to pay his le­gal fees.

Gray also hired a lawyer to help her nav­i­gate the sys­tem. Af­ter read­ing a Globe and Mail op-ed by David Butt, a Toronto lawyer who of­ten acts for sex­ual as­sault com­plainants, Gray emailed him. He agreed to rep­re­sent her, guid­ing her through the process and pre­par­ing her for cross-ex­am­i­na­tion. “I knew that she was a strong, solid, con­sis­tent wit­ness,” he says. “Her nar­ra­tive was co­gent, it was co­her­ent, and, to use a ju­di­cial phrase, it had the ring of truth.”

That af­ter­noon and the next morn­ing, Gray told her ver­sion of events on the stand. Dur­ing cross-ex­am­i­na­tion the next day, Bris­tow pro­duced a record of the texts be­tween Gray and Urur­yar. She asked why Gray hadn’t men­tioned the mes­sage invit­ing Urur­yar to the bar when she had re­ported the al­leged as­sault. “You didn’t make any men­tion of that text mes­sage that you sent ask­ing Mr. Urur­yar to have hot sex that night, cor­rect?” asked Bris­tow.

“I didn’t think it was rel­e­vant to him rap­ing me,” Gray re­sponded.

“You didn’t think it was rel­e­vant at all for the po­lice to know that you had asked Mr. Urur­yar to...come to Vic­tory so that you could have hot sex later?”

“I deleted all the text mes­sages and I re­moved him from my Face­book, so I didn’t want to say any­thing that I couldn’t back up with any ev­i­dence,” said Gray.

Un­like many sex­ual as­sault com­plainants, Mandi Gray took her case pub­lic, speak­ing with me­dia at the court­house and or­ga­niz­ing ral­lies

Jus­tice Marvin Zuker had been on the bench for 40 years when he heard the Urur­yar case. It would be his last ma­jor trial

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