‘Myths of rape should be dispelled’: Ontario Court Justice Zuker

July 22, 2016 3:32 PM

“The myths of rape should be dispelled once and for all,” he announced near the long-awaited end of his verdict. “It doesn’t matter if the victim was drinking, out at night alone, sexually exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped.” He underlined that last line, literally.
posted by Shepherd (26 comments total)

About damn time. This is a good ruling. I hope it sets a precedent.
posted by Fizz at 3:38 PM on July 22, 2016 [11 favorites]

Given the shitshow that Ghomeshi trial was, I hope this sets the precedent for sexual assault trials here in Ontario going forward. This judge was and did everything that that judge refused to.

This is a victory but I wish it didn't have to be. I wish that this sort of outcome was a gold fucking standard for women worldwide in the justice system.
posted by Kitteh at 3:39 PM on July 22, 2016 [46 favorites]

I really hope this sets precedent and other judges - including outside of Canada - take note. If only every woman who has been raped got at least a small measure of justice from the courts.
posted by guster4lovers at 3:41 PM on July 22, 2016 [3 favorites]

Couldn't have aid it better Kitteh. It's sad that we're so pleasantly surprised and pleased with this result. This should be the result whenever someone commits a crime like this. It shoulnd't be this rare thing.
posted by Fizz at 3:41 PM on July 22, 2016 [5 favorites]

The judge was apparently the co-author of a book entitled "The Law is not for Women." I came across this retrospective he wrote.

"If I may be permitted a bit of a detour, I would like to go back to my days at Osgoode Hall Law School. It was there that my interest in family law, my interest in women and the law was awakened, and my awareness became acute that there was no such a thing as equality between women and men and the notion that all people are equal under the law was only a dream. The jurisprudence of the day was heavily weighted in favour of men and, when a man and a woman married, they became one – him. With these thoughts in mind, I set out to write in lay terms of the disquietude of the day and painful disequilibrium of the slow-to-change legal system."

A rare judge. A rare man. Not so rare to think these things but rare to speak out on them. Especially for a man.
posted by amanda at 3:47 PM on July 22, 2016 [71 favorites]

Zuker’s verdict, she said, reaffirmed her belief that sexual assault deserves its own specialized court, where judges and Crown attorneys are trained in rape myths. It also reaffirmed her position that the accused in rape cases must take the stand, so their credibility can be as rigorously tests as hers was.

Yes! YES! YES! YES! YES! And the sooner the better.
posted by pjsky at 3:49 PM on July 22, 2016 [31 favorites]

This is a victory but I wish it didn't have to be. I wish that this sort of outcome was a gold fucking standard for women worldwide in the justice system.

I so completely agree. This should be the baseline that we improve on, not an unusual moment of sanity.
posted by Dip Flash at 3:57 PM on July 22, 2016 [6 favorites]

Does anyone know if the opinion has been released yet? It doesn't seem to be here: http://www.ontariocourts.ca/search-canlii/ocj-en.htm
posted by Dalby at 4:16 PM on July 22, 2016

Can we import this guy into the American Jurisprudence system asap?

The sooner judges are instructed to firmly step in the first time that a defense lawyer attempts to put a rape victim on trial as somehow "asking for it" the judge should deliver a smackdown immediately.

I think that it's possible to maintain a criminal justice system that supports the idea of innocent until proven guilty while also saying that putting a victim on trial is also incompatible with our values.

It seems like there are a whole host of other crimes where the assumption that the victim was somehow asking for it isn't the norm (with some obvious exceptions based upon the race and socio-economic status of the victim and whether the assailant was/is a special class). There are all sorts of massive issues with how our criminal justice system works but it seems like rape and sexual assault is one area where the perceived social status of the victim heavily influences the narrative and prosecution.
posted by vuron at 4:31 PM on July 22, 2016 [5 favorites]

It looks like the opinion has been unofficially uploaded here by a news organization: https://www.scribd.com/document/318957546/Full-text-Justice-Marvin-Zuker-s-reasons-for-judgment-in-the-R-v-Ururyar-sex-assault-case#from_embed
posted by Dalby at 4:38 PM on July 22, 2016 [2 favorites]

Mod note: A couple comments removed; let's skip the nth round of alarmist "but women will falsely accuse men and put them in prison!" concern trolling in here.
posted by cortex (staff) at 4:45 PM on July 22, 2016 [55 favorites]

“The myths of rape should be dispelled once and for all..."

Was anyone else as horrified as I was about what words might be following this phrase? I mean I didn't audibly sigh with relief but I was totally expecting the great taste of bile.
posted by Kid Charlemagne at 4:50 PM on July 22, 2016 [22 favorites]

Yeah I was totally expecting a different story where some male judge decided to basically call all women accusers sluts and whores.

Let's just say after 4 days of the RNC I was pleasantly surprised that was not where this was going.
posted by vuron at 5:00 PM on July 22, 2016 [1 favorite]

Does the woman rush to the police right away or wait days, weeks, months? It doesn’t matter, Zuker said. There are plenty of reasons why victims wait or don’t report at all. Does she remember every gruesome detail in “a piecemeal fashion, rather than in a neat chronology?” It is understandable, people only remember the gist of what happens and trauma causes memory fragments, he said. Does she lie stiff with fear, and not claw at her attacker or scramble desperately for the door during her rape? And if she doesn’t, should she be disbelieved later?

Hero.

I'm so grateful to him for writing this and committing it in a venue that matters. And I don't want to taint this, because it's awesome. But it's another example of things like this -- common sense things that women have been repeating over and over to unhearing and uncaring ears -- not actually counting until a man says it. A man in power. That's so backwards that it's infuriating.

Going to try to step down from that fury for now, though, because this is a victory nonetheless.
posted by mudpuppie at 5:03 PM on July 22, 2016 [39 favorites]

My first trial as a family law lawyer was presided over by Justice Zuker - it was literally his last trial before heading to the criminal bench, which he informed us he was looking forward to doing as a capstone to his career - and as a result of it he wrote an epic-length decision on when shared-parenting scenarios (IE, equal divisions of parenting time) are merited or appropriate. I've actually referred back to it a fair number of times in other cases, so it made up for the fact that my client lost.
posted by mightygodking at 5:15 PM on July 22, 2016 [23 favorites]

This has to be read as a rebuke of Horkins, even indirectly, as the article points out. It's a rebuke of the system generally, but given the language about what testimony should or should not be believed, it's hard not to read it any other way.
posted by bonehead at 5:54 PM on July 22, 2016 [1 favorite]

Zuker said many rape victims find therapy in “creative outlets.” Then he quoted the title of poet Maya Angelou’s autobiography, I Know Why the Caged Bird Sings.

That made me cry. Can we clone this person and install him as every judge in every court everywhere until the end of time please? That he saw her as a person is just so touching and, yes, that should be the norm and it's a tragedy that it's not. Maybe some new lawyers coming through the system will be inspired by him. Maybe he'll clone the mindset in his own way.

However, and not to bring things down, but is 12-18 months the maximum sentence for rape as quoted in the article? Because that's fairly horrific.
posted by billiebee at 4:33 AM on July 23, 2016 [2 favorites]

However, and not to bring things down, but is 12-18 months the maximum sentence for rape as quoted in the article? Because that's fairly horrific.

The maximum sentence for rape appears to depend on how the Crown chooses to prosecute the crime, either as a summary offence (max 18 months) or an indictable offence (max 10 years). When pursuing a summary conviction the accused does not have the right to a jury trial. Normally a summary offence has a maximum jail term of 6 months, but sexual assault is one of the exceptions.

This link *should* go to the relevant section of the Canadian Criminal Code, but the site is down at the moment.

This page gives a good breakdown of the differences between summary conviction offences and indictable offences.
posted by Secret Sparrow at 7:10 AM on July 23, 2016 [1 favorite]

... Especially for a man....

This should not be so incisive, should not cut; I should not have to make sure the writer is not talking about me. Still, all of us would do well to examine ourselves from time to time to make sure we aren't feeding the wrong dogma.
posted by mule98J at 7:36 AM on July 23, 2016 [1 favorite]

Reading the pdf now, and holy hell was Gray with it and rugged in her testimony. Honest as everything, and had the knowledge to see through what the defense was trying to do to her. Amazing.
posted by lauranesson at 7:46 AM on July 23, 2016

Zuker’s verdict, she said, reaffirmed her belief that sexual assault deserves its own specialized court, where judges and Crown attorneys are trained in rape myths. It also reaffirmed her position that the accused in rape cases must take the stand, so their credibility can be as rigorously tests as hers was.

Yes! YES! YES! YES! YES! And the sooner the better.

No. Canada is a signatory of the united nations declaration of human rights, which enshrines the presumption of innocence as a universal human right.
posted by esprit de l'escalier at 11:26 AM on July 23, 2016 [1 favorite]

esprit de l'escalier, I'm trying to understand what part of that quote you're objecting to, and why. Could you elaborate?
posted by Secret Sparrow at 12:27 PM on July 23, 2016 [3 favorites]

It's my understanding that the reason that the accused are not forced to take the stand is that the burden of proof is on the accuser to prove guilt rather than the accused to "have their credibility judged".
posted by esprit de l'escalier at 1:11 PM on July 23, 2016 [2 favorites]

Mod note: One comment deleted. Hey, please feel free to bring up myths overlooked here, but maybe without the heavy sarcasm and "fight me" sort of framing? I'm sure people will be willing to discuss with empathy.
posted by taz (staff) at 4:35 AM on July 24, 2016

It's my understanding that the reason that the accused are not forced to take the stand is that the burden of proof is on the accuser to prove guilt rather than the accused to "have their credibility judged".

While convictions for rape are low in relation to reports, and even lower in relation to occurrence, it does appear that the problem is less with achieving convictions at trial (in the UK, for example, the conviction rate at trial is slightly higher than average) and more with actually getting cases to trial. I will never rule out any modification to the process of justice that may be necessary to address systemic prejudice and oppression, but I think that, before we consider such changes, it would be wise to address the problems that actually seem to be affecting the prosecution of rape at this time.

Hence I believe we need better protections for the anonymity of victims, better support in place to assist with early reporting (perhaps the option to have forensic evidence collected in a process that is wholly under the control of the victim, in a medical rather than criminal justice environment, with no compulsion to go any further at that time and the indefinite option to make a complaint at a later date), better training for police and other first responders, and strong and punitive disciplinary action against those who fail in their duty to victims. If such steps are insufficient, we might consider actual modifications to the process of trial, but I think it is wise to be cautious of such steps, despite their clear and justifiable appeal.
posted by howfar at 5:07 AM on July 24, 2016 [1 favorite]

Justice Zuker has revoked Ururyar’s bail. "It's life as usual for Mr. Ururyar. Again we forget about the complainant. We forget about the victims. Do you think it's been life as usual for Ms Gray?"

There have been two recent decisions in Alberta that are also excellent on sexual assault, the law of consent, and myths. From the Court of Queen’s Bench, R v JR:

Consent means "Yes". The word "No" does not mean "Yes". The word "No" coupled with fending off an attacker with a water bottle does not mean "Yes". There is nothing ambiguous about it. Even if the situation was as the trial judge found "at best ambiguous", that is not "Yes". Finally, the complainant's state of mind after the incident is irrelevant to the question of consent. Indeed, the trial judge's consideration on the complainant's post-incident conduct is indicative of sexual stereotyping about how victims of sexual assault will behave. As an example, the requirement that a complainant raise the hue and cry has long since passed into the mists of time.

And from the Court of Appeal, R v Hajar (the context here is the rape of a minor who can't legally consent to sex with an adult even if she wanted to, which is what "de facto consent" below is about):

There seems to be some confusion about what is meant by the word "violence" in the context of a major sexual assault. That confusion has led to the defence argument that since de facto consent does not involve violence, the fellatio which occurred here is not analogous to a major sexual assault.

This reasoning is erroneous. It wrongly assumes that "violence", in the context of a major sexual assault, requires something more than non-consensual sex. It does not. The starting point for a major sexual assault is premised on the violence inherent in the commission of the offence. [...] And yet, some seem to think that unless overt force is used to compel submission – a fist in the face, hit to the head or blows to the body – a major sexual assault does not involve violence. They are wrong. [...] To be clear, overt force is not what makes a major sexual assault inherently violent. The act itself suffices.

posted by there's no crying in espionage at 9:00 AM on July 27, 2016 [2 favorites]