The “rapenomics” of sexual assault

The Ontario Court of Appeal heard arguments on Thursday, March 16, in the case of Mustafa Ururyar, the York University graduate student who was found guilty of sexually assaulting PhD student Mandi Gray in 2015. Ontario Court Justice Marvin Zuker sentenced Ururyar to 18 months. His lawyers immediately appealed, and he was released on bail pending that appeal. Superior Court Justice Michael Dambrot will hand down his decision on June 8, but it’s a no-brainer that the conviction will be overturned.

Ururyar’s grounds for appeal focus on what his lawyers claim were errors in Zuker’s decision. These included judicial bias (although there were no defence objections to bias during the trial) Zuker’s criticism of defence lawyer Lisa Burstow’s use of what he identified as rape myths and the “uncontested academic material” (read “feminist”) that Zuker partially relied on in making his finding of guilt. 

The Criminal Lawyers Association has intervened on Ururyar’s behalf. Their specific grievance is that Judge Zuker erred by ordering Ururyar to pay Gray’s $8,000 in legal expenses – an order previously unheard of in the history of rapedom and, if the CLA gets its way, never to be heard of again – even though potential rapists might hesitate if they know there will be a financial cost for their behaviour. 

Yet the CLA’s original factum argued that sexually assaulted women do not need to be represented by their own legal counsel in the justice system. But their argument, that the Crown adequately represents the complainant, is not supported by the evidence, nor by Crown attorneys, for that matter. Ask one. Their role is clear in Canadian jurisprudence, which holds that in all legal matters Crown attorneys represent the state, or Regina, the Queen of England, the only woman identified person with legal representation in a rape trial in Canada.

Raped women and men who get to court are undefended, uninformed and disappeared from a process in which they play the central role of victim and witness.

Our weak rape laws give defence lawyers full agency to attack complainants based on their sexual, mental health, work, family, alcohol and drug consumption history. With few exceptions, there will be no objections. No one will rise to their defence in court. This is the main reason people don’t report sexual assault. 

Sexually assaulted persons must presently pay big time for limited legal representation in court.

There are vast financial, personal and psychological costs in the economics of sexual assault for complainants (whether they get to court or not). It can cost you a shitload of money to do the so-called responsible thing of reporting your assault and proceeding to trial. “Rapenomics,” Gray calls it, because win or lose, you’re going to pay. 

Most attentive followers of the trial – feminist or not – believe Ururyar’s conviction will be overturned. Zuker’s decision to cite the use of rape myths as unjust in Ururyar’s defence can’t be reconciled with a legal system that holds fast to those myths, especially for those who are trans, Indigenous, Black, disabled, sex workers or racialized.

All of this became obvious about 10 minutes into the appeal proceedings, when Justice Dambrot smirked in agreement as he and Ururyar’s lawyer, Mark Halfyard, openly mocked Zuker as a “show-off,” “sarcastic,” “unmoored” and with a “closed and lazy mind.” 

That was before Dambrot heard the bulk of the evidence or arguments from the Crown and Gray’s intervenors, lawyers Joanna Birenbaum and Pam Hrick on behalf of the Barbra Schlifer Clinic. The judge actually held out his hands and shrugged a few times in apparent disbelief. It was as if he and Halfyard were locker-room buddies jocularly rebuking Zuker’s references to violence against women. It was brutal. When he opined that raped women often have a political agenda, courtroom observers dared to correct him. He told us to get out if we didn’t like it, which we did. Any reasonable observer would have been troubled.

Mandi Gray was a human rights activist long before she was raped by Ururyar, and it was natural for her to turn her activism toward sexual assault. She has accomplished a great deal for us in that regard. She used her real name, got her own lawyer and founded activist groups at three universities. She would not let us look away or dismiss her. She does not lose hope or purpose when she is regularly threatened with rape and death online, or when right-wing media attempt to harass and intimidate her. She carries on. 

But in the end, she was another woman failed by the justice system. Gray has decided to forgo a second trial should she lose the appeal. It is not a retreat. It is another lesson in resistance and transformation.

Jane Doe is an author, lecturer and activist. | @nowtoronto

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