Man not guilty of sex assault because he thought it was OK

HUSBAND AND WIFE

OTTAWA • An Ottawa man has been found not guilty of sexually assaulting his wife because of his honest belief that he had the right to have intercourse with her whenever he wanted.

In a written ruling, Ontario Superior Court Justice Robert Smith said the Crown failed to prove the accused formed the required criminal intent — mens rea — to sexually assault his wife in 2002.

“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,” Smith said.

However, the judge ruled the man was not guilty of sexual assault because the Crown failed to establish that he knew his behaviour was criminal.

The man was part of an arranged marriage in Gaza. His wife, a Palestinian who grew up in Kuwait, lived in Ottawa and the family settled in this city.

She testified that during their marriage, she considered it her obligation to have sex with her husband. Often, she told court, she did not consent, but they both believed it was his right.

The couple separated in January 2013, but they had difficulty making child custody arrangements work.

Court heard it was during a dispute over child access — after speaking to a police officer — that the woman came to understand she had the right to refuse sexual relations with her husband. She complained to Ottawa police about a 2002 incident.

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

His wife alleged that, in 2002, he grabbed her by the wrist, pulled her onto the couch, and had sex with her even though she asked him three times to stop.

“Marriage is not a shield for sexual assault,” Smith wrote in his decision. “However, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt.”

The man’s defence lawyer, Sean May, said the timing of the charges — they came to light during a combative phase in the relationship — also raised doubt in the case.

Carrolyn Johnston, acting executive director of the Ottawa Coalition to End Violence Against Women, called the ruling “disappointing.” She said it highlights persistent myths about sexual assault.