Ontario Court Justice Marvin Zuker changed the landscape of sexual assault and the criminal justice system
Mustafa Ururyar was convicted of sexually assaulting Mandi Gray
Mandi Gray speaks to reporters outside Old City Hall courthouse on July 21 after the guilty verdict in her rape case. (COLE BURSTON / FOR THE TORONTO STAR)
By CATHERINE PORTER, The Star
Canada: Ontario Court Justice Marvin Zuker changed the landscape of sexual assault and the criminal justice system on Thursday.
He found York University student Mustafa Ururyar guilty of sexually assaulting fellow PhD student Mandi Gray.
“Of this there is no doubt,” he said. “Ms Gray was raped by the accused.”
But it was his verdict, 179 pages delivered in a deliberately patient cadence over more than two hours, that was revolutionary.
“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.
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?
“This is ludicrous and contrary to the way in which victims behave when attacked,” he said.
“For much of our history the ‘good’ rape victim, the ‘credible’ rape victim has been a dead one.”
At about the 80-minute mark, when it finally became clear which way things were going, many of Gray’s supporters in the gallery gasped, grabbed one another’s hands and cried. They had expected the opposite because that’s the way it usually goes, particularly in typical sex assault cases like Ururyar’s that pivot entirely on consent.
Ururyar acknowledged he and Gray had sex. The two had been hooking up for two weeks, since they’d met at a union meeting at York, where he was studying political science and she sociology.
The night of the assault, she’d texted him from a bar to “come drink and then we can have hot sex.” He came, they shut the place down and then walked back to his place.
Her testimony, which Zuker ruled as the truth, was that he berated her on the way home, calling her “an embarrassment” and “a slut” until her self-esteem crumbled. Once he got there, he jammed his penis into her mouth and then raped her. She lay frozen in fear. The version Ururyar told from the witness stand was they’d gone home happily, he’d broken up with her and then they’d had consolation sex.
Like in most cases, there were no witnesses to the rape. There were no obvious physical injuries detected by a sexual assault kit Gray had done the next day. There were just the two people’s words.
Zuker ruled Gray “very credible and trustworthy” and Ururyar’s evidence “a fabrication, credible never.”
He slammed him even for his defence tactics: “He went or tried to go to any length to discredit Ms Gray, if not invalidate her. Such twisted logic.”
Apart from the ruling, what was also atypical in the case was Gray herself. She wasn’t the stereotypical broken woman. She came to court in a cute skirt and blouse, often revealing an arm of tattoos. She was bold, proud and angry. She repealed the publication ban on her name and sent press releases about coming court dates. She hired a lawyer to advise her. Instead of fleeing court after testifying, she arrived each day of the six-day trial to hear Ururyar’s testimony from the gallery and his lawyer Lisa Bristow’s final submissions, in which she painted Gray as a vengeful liar out for fame.
Despite the brave front, Gray called the experience traumatizing.
“It’s really sad that the legal system is doing what it is supposed to and we are all shocked,” Gray said from the Old City Hall courthouse’s grand steps after the ruling had been delivered. (Gray uncharacteristically was not in court when the verdict was read Thursday. She released a public statement from home, and came in the afternoon after Ururyar had been found guilty.)
“It’s hard to feel a sense of justice and I want to, but this process has been so brutal to me I just cannot feel at this moment feel any sort of happiness.” she said.
“This outcome is statistically so unlikely, I think a lot of things lined up for me both within the legal system but also because I’ve been fighting since day one, when it was the police officer that told me I implied my consent and I challenged him with case law,” she said. “Not a lot of people will do that.”
Near the end of his ruling, Zuker seemed to address Gray personally, through feminist poetry and literature.
Who is this judge, I wondered? My colleague Oliver Sachgau dug up that he’d been a family court judge in the 1990s and was known for taking a child-centred perspective. He co-wrote two books about women and the law with the late, wonderful feminist and social justice activist June Callwood. One was a handbook for women navigating the law, titled The Law Is Not for Women.
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.
Gray has a large colourful tattoo of a bird flying out of a cage on her upper left arm. What Zuker did not know was she got it done last summer, as a way of reclaiming her body from the rape that haunted her. (The phenomenon of rape tattoos is one she’s studying.)
Among Gray’s supporters in the gallery was Linda Redgrave. She was the first witness in the case against Jian Ghomeshi, which began the same day as this one last February, in the same court, one floor down. In his “not guilty” judgment, Justice William Horkins excoriated Redgrave as inconsistent, deceptive even. Since then, she lifted the publication ban on her name and has become a regular at the courthouse, supporting other sexual assault victims.
Ghomeshi was a CBC Radio star charged with assaulting women with whom he had sex against their will. Ghomeshi was able to show that those relationships continued to a point after the alleged sexual assaults, which the women did not disclose.
Mandi's disclosure that she texted Ururyar and invited him for drinks and hot sex, in most trials, would probably have been seen as consent, along with her going back to his apartment. But the fact that she disclosed it was an indication that she was being honest and open, and, I'm sure, contributed to the judge's acceptance of her testimony.
Will this affect other rape trials in Ontario and Canada? Or will other judges see Zuker as a feminist campaigner and reject his myth-busting? That would be very unfortunate; something has to be done to improve the appalling low conviction rate of rapists. Conviction rates in Canada are less than one half of 1% of reported rapes. Obviously, it would be even less if you could include unreported rapes.
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.
“It’s a victory,” said Redgrave. “But it makes me sad about my trial. It makes me wish I could go back and have different players.”
Ururyar looked stunned by the verdict. During the lunch break, he wandered around the second floor of courthouse towing a blue suitcase (he’s moved out of Toronto and is flying in for court dates), with a spaced-out glare in his eyes. Clean-cut and baby-faced, he looks like a nice guy, not a rapist, another myth Zuker skewered Thursday.
“We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance and consequently the nice guy must not be guilty of the alleged offence,” Zuker said in his verdict.
Nice guys rape, too.
Crown Attorney Jennifer Lofft pushed for Ururyar’s bail to be revoked because he is a convicted rapist. Zuker will decide that Monday, but sentencing won’t be until Oct. 24. Lofft is asking for a medium to maximum penalty of 12-18 months in jail, and Bristow is vying for no jail time.
The wheels of justice, even when they’re on the right track, grind excruciatingly slowly.
Out on the court steps, Gray declared the case still not over for her. She has filed a human rights complaint against York, for lacking clear policies and protocols for students sexually assaulted by classmates or staff, and that is dragging on with no end in sight.
“In a lot of ways my life continues in shambles,” she said.
She has changed her PhD subject from women in prison to sexual assault.
That seems fitting.
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