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Why Judge Zuker’s Verdict was Just

By Stephanie Stella
R v Ururyar ended in a landmark conviction on July 21st, 2016. (For those of you keeping score at home, this is nearly four months to the day after Ghomeshi’s disastrous case ended in acquittal.) This case was initially noted as significant, because (to quote the complainant, Mandi Gray) it was a case where the court “did what they were supposed to do,” which is surprisingly rare in sex assault cases. Since then, the backlash has been significant. Anti-feminist “activists” are saying this result was a miscarriage of justice, and that Ururyar is innocent (for a cited breakdown on why that’s not true, please see the section titled “A refutation for those who believe in Ururyar’s innocence”) and with that comes harassment of the complainant. That is a very real risk for those of us who come forward, and especially those of us who choose to show our faces. If anything, our willingness to attach our name permanently to the record, and risk the subsequent violence that seems par the course, is an indication of our commitment to telling the truth.

The court doesn’t see it that way. As the defendant is considered innocent until proven guilty, the complainant is accordingly considered lying until proven innocent, and, as the reaction to this case is showing, any hint of believing the victim is deplorable. The case is currently under appeal, and the Superior court is admonishing Justice Marvin Zuker over his method of truth finding.

Again, see my cited breakdown to see why any neutral and reasonable judge would convict Ururyar’s case. But we’re not dealing with reasonable people here. We’re largely dealing with untrained and ill-informed judges who are inherently biased against victims of rape. She shouldn’t have gone home with him. She was wearing too little/too much to have not consented. She didn’t act like a victim. She’s just looking for attention. Judge Zuker saw through all of the myths the defence presented, and didn’t buy into them. Myths, after all, have no basis in reality. He was knowledgeable about the crime he was judging – something that seems like it should be basic common sense. But it somehow eludes the highest system, that someone who is given that much responsibility should at least know what they are talking about. Having judges across the continent tell victims that they aren’t confident enough to convict their attacker, but they’re confident enough to scold the victim for being attacked, is a godforsaken embarrassment. Then along comes a judge who doesn’t mindlessly fall into this crooked line, and the world explodes in anger – at the judge. Almost like they want to keep a status quo.

***

The superior court is faulting Judge Zuker for having a different standard of scrutiny of the evidence of Mustafa Ururyar, the defendant. I disagree. Both sides were on the stand for a considerable amount of time (Ururyar spent a full day on the stand, while Mandi spent three days) and both were subject to a thorough cross examination. Compared to my trial, where I spent eight hours in cross examination, and my rapist was cross examined for twenty minutes. There was a massive disparity in the thoroughness and vigour of our examinations, but no one raised an objection then. I raised points that indicated my rapist’s guilt, and was ignored. My rapist told a story that was detached from reality, and was believed with hardly a question. In a court where the evidence of both sides are supposed to be given the same standard of scrutiny, my trial should have raised a lot more eyebrows than Gray’s. Gray’s seems to have actually followed the standard.

Before anyone argues that Gray’s evidence was not examined and that all her evidence was taken at face value, I disagree. Judge Zuker did examine the evidence she presented – and what she didn’t or couldn’t present – and found that it was consistent with the typical reaction of a victim of sexual assault. Gray’s inability to fight back, leave, report immediately, or even accept immediately that her friend could rape her was all consistent with how most victims of sexual assault react, and taken as evidence against the defendant.
Compared to Judge Leslie Chapin examining the evidence – surveillance footage taken roughly a half hour after my assault, showing me smiling tensely at my rapist. She decided I did not look panicked enough to convince her that I had been traumatized (despite the fact that overtly panicking is inconsistent with both my own personality, and with how most victims initially react after a sexual assault – they tend to be in shock, and try to appease their attacker). I had also reported after three days, after failing to physically fight back against my friend – like Mandi, I had trouble reconciling the person who I thought I knew, with the person who had just attacked me, and expressed confusion over the sudden change in my friend’s demeanor. Again, this evidence is all consistent with how many sexual assault victims react. While this evidence exonerated Mandi, it was used against me by my judge, to say that I must have consented and fabricated a story. Unfortunately, ill-informed judgements like the one Judge Chapin gave, occur far more frequently than that which Judge Zuker gave.

***

Before anyone accuses me of blindly following Judge Zuker – I do have my critiques and criticisms. The final section of his verdict, entitled “I Know Why the Caged Bird Sings,” was emotional (aside: I plead guilty to sobbing through this part, and being the first to burst into applause at the conviction – I was so overcome with emotion at finally having an authority in the law validate my experiences as real.) and purposeful in it’s discussion of how survivors of sexual violence cope with and move past their trauma. It was aimed at survivors everywhere, and I understand Judge Zuker’s decision to include it – he knew the world was watching this case, and he knew, especially following the public collapse of Ghomeshi’s trial, that someone in power needed to set the record straight, to use his words, “once and for all.” He could have sent out his message using a different platform, but then who would listen? I understand his decision. But even in the gallery, listening to the verdict and wiping my eyes, I found myself wondering if judges were allowed to talk about human emotion in their ruling. However, given the dire circumstances survivors facing the courts are in, I support his choice.

I had learned from preparing for my own trial that judges are supposed to ignore emotion from people on the stand, as that can be faked, but then Judge Zuker said something that stuck with me. In a case where the primary evidence comes from two diametrically opposing testimonies, determining the truth becomes more of an art than a science. He’s on to something here. Considering that criminal court, with it’s standard of proof being beyond reasonable doubt, requires proof to border on scientific accuracy to attain a conviction, I can see why the masses are feeling outrage. This supports my belief that sexual assault cases, given the very nature of the evidence, need to be tried in a separate court – perhaps one where the standard of proof is not scientific, but a balance of probabilities.

My main criticism, and the one I fear was the reason he had the whistle blown on him, is in his decision to revoke Ururyar’s bail, seemingly before hearing arguments from either the Crown or defence. This is the major tipoff to the Superior Court that he “may have had a predisposed mind” and I do wish he could have waited until after the arguments were heard before making his decision known, as he had done during the trial. My fear is that it will be used by detractors to support their belief that he had his mind made up the entire time.

***

Judge Zuker is doing what the courts should have been doing all along, though. He is treating sexual assault with the severity that it deserves. For what it does to its victims, sexual assault is a crime on par with abuse, torture, and murder. It robs the victim of the life they once had.

In the wake of Brock Turner’s slap-on-the-wrist sentencing, California has just passed a bill stating that anyone convicted of rape (provided the victim was incapacitated and unable to fight back, which is a whole new can of worms) must face jail time. Assemblyman Bill Dodd said “Letting felons convicted of such crimes get off with probation discourages other survivors from coming forward and sends the message that raping incapacitated victims is no big deal.” Similarly, to use the words of Superior Court Justice Michael Quigley, Justice Zuker denied Ururyar’s bail “to maintain confidence in the administration of justice.” The criminal justice system – across two countries, no less – finally beginning to understand the severity of this crime cannot be a bad thing.

The Superior Court is trying to fault Judge Zuker for bringing up points that were supposedly never brought up in trial, or inappropriately using the verdict as a platform to refute rape myths. Anyone who says this, clearly wasn’t paying attention to the trial itself. His refutation could easily be traced back to Crown prosecutor Jennifer Lofft’s “Rape Myth Catalogue” speech from her closing arguments, and was not added in by his own whim. If anyone is taking issue with how Judge Zuker talked about refuting rape myths in his verdict, they are really taking issue with how the Crown did her job. As for his citation of academic sources, and not giving the defence a chance to respond to it – he is bringing up fact, not opinion – it’s the defence’s job to know the facts and be able to mount a satisfactory defence against them. That is on the defence attorney. Ururyar’s defence lawyer, Elizabeth Bristow, instead chose to rely on myths to exonerate her client. More often than not, that method works, but Lofft ensured this time that it wouldn’t.

Judge Zuker demonstrated the meaning of innocent until proven guilty. He did not require neither the defendant nor the complainant to prove their innocence. If there was not enough evidence, as he said in his verdict, he would have had to acquit. But the evidence was there. He just knew what to look for. He had studied trauma and the way it impacts the brain. Not only studied; he’s written books on the subject. He knows about the reactions rape victims often have, and compared it to the complainants’ testimony. He let the defendant hang himself on his own testimony, then finished the job in convicting.

“I agree with the trial judge that it is disturbing if sexual assault is as underreported and unsuccessfully prosecuted as many statistics seem to indicate. However that does not alleviate his or my responsibility as a trial judge to properly review and evaluate the evidence presented at trial in a fair, balanced and impartial manner … like all triers of fact, he was obliged to assess the evidence without bias, sympathy or prejudice,” Justice Quigley said in the Superior Court appeal.
And Justice Zuker fulfilled his obligation. He did not bring prejudice into the trial, unlike so many other judges who come in with a head full of prejudiced beliefs against the victims. He, and Jennifer Lofft, came in with a head full of knowledge. Knowledge isn’t prejudice.

A refutation for those who believe in Ururyar’s innocence

R v Ururyar, before Justice M A Zuker, judgement released July 21, 2016
http://www.ontariocourts.ca/search-canlii/ocj-en.htm
(Initially posted to Youtube)

Pgs 43-45, section 84-87: Gray, under cross examination, explains why she would not have removed her clothes, namely her underwear.

Pgs 52-53, section 101-103: Gray, under cross examination, talks about how Ururyar verbally abused her, and then a few days later, sent text messages apologizing for the things he said AND DID. Ururyar talked about making a mistake, but the defence suggests it is in reference to breaking up with Gray, which is incongruous with Ururyar’s testimony that he did not want to be with her any longer.

Pgs 56-57, 59, section 111: Halfway down pg 56 to halfway down pg 57, Gray talks about sending texts to her friend immediately after leaving Ururyar’s apartment. This is rehashed in the Crown’s submission (pg 148, beginning of section 334). Partway down pg 59, we get the reason why Gray deleted all the texts from Ururyar. On the next page, Gray clarifies that “blackout drunk” just meant “really intoxicated.” She had around 7 beers in eight hours, plus she’s on medication which interacted and increased her level of intoxication.

Pgs 63-64, section 120: Grey, under cross examination, explains why she didn’t go straight home.

Pg 83, section 139: Gray, under cross examination, refutes the “activist” narrative the defence is trying to push. (If my memory is correct, this was the very end of cross, which had been three days long, so Mandi would have likely been very exhausted and had no mental stamina left.)

Pg 87, section 142: At the top of the page, Gray, in re examination, talks about taking emergency contraception. This requires context. She testified that they had not been using protection in the two weeks they had been dating, but that she had been following her cycle to avoid pregnancy. For her to suddenly need emergency contraception after using the rhythm method, supports her claim that it was nonconsensual. (This is reinforced during Ururyar’s own cross examination, pgs 121-122, section 207-209, and summarized in the Crown submission, pg 149, section 339.) On the next page, at the end of this section, Gray clarifies her “confusion” over whether she had consented.

Pg 112/127, section 185/220: Ururyar, under cross examination, can’t decide whether his girlfriend was the reason for breaking up with Mandi.

Pg 146, section 325: halfway down the page, submission by the Crown: Ururyar himself says you can’t predicate an entire evening based off one text message. Straight from the horse’s mouth!

Pg 147, section 329: submission by the Crown: Gray testified she didn’t become an activist until after the fact. (At the actual final submission reading, the Crown went on to say that it is a very dangerous idea to hold one’s political activism under suspicion, because then it suggests that actual activists can’t be raped at all. We can’t just take a group of people and decide the law doesn’t protect them where it protects everyone else; that would be unconstitutional.)

Pg 148/149, section 331-332/338: the Crown refutes the “spurned lover/revenge” motive using evidence provided by both the accuser and the accused.

Pg 149, section 335-336: the Crown summarizes Ururyar’s testimony from his cross examination. According to Ururyar, Mandi had acted such that he decided they were incompatible earlier that night, but for some unexplained reason, didn’t decide to tell her until literally the moment she initiated a kiss in bed that night. (See also Ururyar’s cross examination, pg 115-116, section 192.) It was incomprehensible and that led to the rejection of his testimony.

Pg 150, section 340-342: the issue of Grey’s confusion about whether she consented is clarified and refuted.

Pg 176: the section known as “I know why the caged bird sings” begins. It mostly deals with how a sex assault victim often copes with their assault, with a very brief mention of Maya Angelou and Virginia Woolf at the very beginning.
Pg 178: the section known as “I know why the caged bird sings” ends.
Pg 179: the summation that the Crown has proven their case, and the guilty verdict.

2 Comments

  1. Reply

    Ray Bernier

    I agree with the writer’s statement that we need a court to hear sexual assault cases where the legal bar is lowered to ‘on the balance of probabilities’. And there just happens to be a Supreme Court decision making this possible. In R v Oakes (1986) the Supreme Court of Canada reaffirmed the supremecy of our ‘innocence until proven guilty’ cornerstone of law. But then the Court also ruled that in instances of a ‘pressing social nature’ a free and just society may require an accused to prove his innocence, but he need not meet the standard ‘beyond a reasonable doubt’. They ruled that the accused need only meet the standard ‘on a balance of probabilities’. The historic and continuing epidemic of unwanted sexual aggression certainly qualifies as a ‘pressing social’ concern. Therefore I propose that a new sexual assault law be drafted following the parameters set down in R v Oakes. Anyone out there with the guts to agree with me?

    1. Reply

      LC - Coming Forward

      I’m totally in agreement. A balance of probabilities is a far more appropriate approach when dealing with sexual assaults.

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