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
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