The many trials of Mandi Gray continue.
On Thursday, July 20, Ontario Superior Court Judge Michael Dambrot overturned the verdict of convicted rapist Mustafa Ururyar on one charge of sexual assault – as was expected – and ordered a new trial.
Dambrot ruled that original trial judge, Marvin Zuker, had broken pretty much every rule of judicial practice in his decision, and berated his judgment as biased, incomprehensible and illogical. In a postscript, Dambrot also accused Zuker of plagiarism.
Interestingly, Dambrot did not pronounce on the matter of Zuker’s order that Ururyar pay Gray’s $8,000 in legal fees, despite the intervention and much gnashing of teeth by the Criminal Lawyers’ Association, which opposed compensation. Although nullified by the appeal, Zuker’s precedent in awarding restitution is still critical.
Astonishingly, Dambrot wrote that “This was a simple rape trial.”
The Office of the Crown Attorney now decides if they will retry Ururyar, although it seems unlikely now that Gray has indicated that she is done with engaging in a legal system that doesn’t work for sexually assaulted women and men.
But the decision is not hers she can be subpoenaed and forced to testify again – and why not, given recent practices of arresting and imprisoning women who report their sexual assaults?
In fact, why not just put Gray in jail now? She continues to be treated like a criminal, her life interrupted, her savings spent, her life and livelihood regularly threatened. And all of that as a result of doing the so-called right thing and reporting her sexual assault to police.
Ururyar’s case has been about two judges: one who understood the pernicious use of rape mythology as a key defence but erred grievously in his reasoning, and another who acknowledged the practice but ignored it.
Dambrot’s damning of Zuker and his ruling should be considered in proportion to his own inability to think and reason beyond the confines of our property-based law and its untenable application to sexual assault.
We all wish that Zuker had applied more case law and research that would have better supported his ruling on appeal – and there is a lot of it. We lament that, although his pronouncements were directed to the singular use of rape mythology by a newbie defense lawyer, that piece has been erased, unspoken in appeal and media denouncements.
I’ve often thought that the biggest problem with the judicial system is that judges (and lawyers) think the law is the law and must be upheld no matter what, when their duty – their responsibility and privilege – should be to challenge and change laws that don’t work in the best interests of complainants and the accused.
When they fail in that, legal practices that are sexist and racist continue as the norm.
Zuker did attempt to challenge existing sexual assault law and procedure but forgot where he was. And there was no way the law was going to stand for a verdict that condemned its own rape culture.
Currently, there is a heralding of “new” judicial training and the difference it will make in sex assault cases. But let’s not be naive.
The training is only mandatory for new judges (but not law students) although a bill currently making its way through Parliament seeks to remedy that.
But who is designing and delivering the training? Not experts in the field, as it has been decided by those in charge that qualified sexually assaulted persons and those who work in that area might be too biased in any curriculum they produce. It’s a notion that fits perfectly into the rape myths that women who report their sexual assaults are seeking revenge or that their intelligence has been altered.
Instead, the training will be conducted by lawyers, politicians and academics, the majority of whom have never witnessed or been involved in a rape trial.
The same concern applies to a new provincial program that provides limited free legal advice to sexual assault complainants in some regions. Who has trained those trainers?
Will future judges be informed by case law, legal precedents, science and research that can transform current jurisprudence and withstand appeal?
Certainly there are judges and lawyers who understand their power and responsibility. At a recent rape trial, the judge stopped defence lawyers from attacking the history and behaviour of the complainant with a rebuke amounting to “Not in my court room, you don’t!” I won’t tell you the judge’s name for fear that she will be accused of bias. The alleged rapist was acquitted.
Gray’s trials are not particular to her. They are exemplars writ large of what happens to most people (overwhelmingly female identified) who report sexual assault.
As with most rape cases, Ururyar’s defence focused on demonizing Gray, through the use of rape mythology which holds that women lie about what has happened to them. That myth is what informs us most about the crime. It’s fed to us by media, religious, medical and other institutions. Law students are not dissuaded of it because sexual assault law courses are not mandatory, nor is pedagogy about the intersections of race, colonialism, poverty, sex work and mental health in crime generally. Some of those graduates become judges and presume to sit in judgment on sexual assault cases, unschooled in the topic on which they will rule. It is at their discretion that women’s past sexual and other histories and rape myths are admissible at trial.
One remedy would be to require the testimony of a sexual assault expert at every rape trial, as is done for other crimes, who can draw a picture of the history and nature of the crime, its effects on those who experience it, the sexism and other intersectional factors that promotes it.
I did that in my civil suit against the Toronto police, and it was essential in the judge’s guilty finding.
Instead, we choose to maintain rape status quo. In the end, there are no winners in R v. Ururyar. Jail sentences like the 18 months handed Ururyar are not solutions. And now Mandi Gray is rendered unraped, I suppose, and the lesson to others in her position is “don’t come here.”
Meanwhile, the same legal processes play out daily: complainants pay dearly, legal economies are boosted, our youth are socialized into violence, our governments and universities initiate toothless reforms, and sexual assault statistics continue to rise. Simple indeed.
Jane Doe is an author, activist and educator. Her current project Sexual Assault: The Roadshow is touring Ontario.
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