Rape

Canadian University Student Convicted of Rape, But Was the Judge Biased Against Men?

Mustafa Ururyar's trial highlights a dilemma.

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York University
Dreamstime

Concerns that the crusade against "rape culture" is creating an accusation-equals-guilt mindset in sexual assault cases have been mostly aimed at colleges. It's campuses that employ extralegal tribunals to settle rape disputes—tribunals where the accused often do not have the right to an attorney, to cross-examine their accusers, or to examine the evidence against them. But the latest contentious rape case comes from a real court—albeit in Canada, where feminist activism has been much more successful in influencing the justice system than in the United States.

On July 21, Mustafa Ururyar, a 29-year-old York University graduate student, was found guilty of sexually assaulting fellow grad student Mandi Gray, 28. The verdict was handed down by Ontario Court Judge Marvin Zuker in a non-jury trial. The alleged rape—and I say "alleged," because after reading the 180-page judgment I see no grounds for a finding of guilt beyond a reasonable doubt—happened in the early morning hours of January 31, 2015.

The case is a classic he sad/she said. Ururyar and Gray, who had been casually involved for two weeks—he told her he was in an open long-distance relationship with his girlfriend—had spent the evening drinking with friends. It was Gray who had invited Ururyar to join them with a text that said, "Come drink and then we can have hot sex." When they were leaving the bar around 2:30 a.m., Ururyar asked another woman in their group to come with him and Gray to his apartment, but she refused and left in a taxicab.

At that point, Gray's and Ururyar's accounts sharply diverge. Gray claimed that Ururyar suddenly became angry and verbally abusive, blaming her for not helping persuade the woman to come over for a threesome. Though shocked and upset, Gray said that she still went with Ururyar to his apartment since she was drunk and feeling too "vulnerable" to take a cab home by herself. She said that he continued shouting and berating her during their walk and then at his apartment, finally telling her, "This is the last time ever that I'm going to fuck you and you're going to like it." Then, Gray said, he forced her to perform oral sex and raped her vaginally, and she was too scared and psychologically shattered to protest.

Ururyar's version was very different. He said that Gray flirted with him all evening and that he even told her to stop touching him when she groped his thigh, twice. He admitted wanting a threesome, supposedly because he had heard from a friend that Gray was interested, but denied insulting or berating Gray. He also said that back at his apartment after they got into bed, he told Gray he wanted to end their relationship and mentioned being annoyed by her behavior at the bar. He said that Gray began to cry and he comforted her, and that she then initiated sex.

There was no independent evidence to strongly support either account. Both Ururyar and Gray had sent ambiguous messages referring to the night's events. Gray texted Ururyar the next day saying, "Last night was really fucked up" and he replied, "Okay." She also texted a female friend asking, "If you don't consent to sex, but you don't not consent, I don't know what is that?" to which the friend replied, "That's rape." Five days later, Ururyar sent Gray an apology, unaware that she had already gone to the police. He wrote: "I am sorry things went as they did. I shouldn't have said and done some of the things I did. I was upset and felt wronged by you but that does not excuse my own mistakes."

Gray's story may well be substantively true. If so, ururyar's actions certainly amount to sexual assault. Submission out of fear is not consent, and even if Ururyar made no over threats, his behavior as described by Gray sounds threatening and coercive enough. Her earlier sexual offer is irrelevant to her state of mind at that point.

But ururyar's story, too, is entirely believable. You don't even have to think that Gray was lying out of vindictive spite, which is what the defense suggested. Gray might simply have reinterpreted the sex as coercive because she felt hurt and humiliated—especially with her memories clouded by alcohol and, perhaps, filtered through ideology. Gray had previously worked with the Elizabeth Fry Society, which advocates for female criminal defendants and espouses radical leftist-feminist perspectives on sexual violence.

Or the truth could be somewhere in between. Maybe Ururyar was more verbally abusive than he admitted. Maybe Gray had sex with him in an attempt at comfort because she felt demoralized and confused, not physically threatened.

There are several plausible scenarios—certainly enough for reasonable doubt.

Justice Zuker resolved this by choosing to accept Gray's account, dismissing all inconsistencies as due to trauma, and to reject Ururyar's testimony outright because it was "at total variance" with hers.

The judge repeatedly stated that various facts alleged by Ururyar "never happened." He declared that it was "incomprehensible" to paint Gray as a "seductive party animal," notwithstanding her seductive text messages (which she had deleted from her phone and never mentioned to the police). He asserted—incomprehensibly—that "we don't even know what the phrase 'hot sex' means." He mocked Ururyar's claim that he was embarrassed when Gray groped him at the bar, despite her admission that he asked her to stop touching him. He claimed to know for a fact that Ururyar's apology was for a sexual assault, not a bad breakup.

Moreover, Justice Zuker used his judgment to deliver a sermon that, in the words of National Post columnist Christie Blatchford, sounded "borrowed from a college course on feminist thinking." (As Canadian court reformer Lise LaSalle has documented on her blog, he is a veteran advocate for feminist jurisprudence.) He denounced "rape myths," spoke of "the interplay of power, gender, and sexuality," and cited several feminist texts such as Susan Brownmiller's 1975 book, Against Our Will: Men, Women and Rape.

When Ururyar is sentenced on September 14, he could receive up to eighteen months in jail. Meanwhile, at a July 25 hearing, Justice Zuker not only revoked his bail and ordered him jailed immediately but berated him and jeered at the idea that he should be given a chance to complete schoolwork and spend time with his family. "He's not the victim here," Zuker said.

But there is a real possibility that Ururyar is indeed a victim—of a wrongful accusation and a biased judge.

While Canadian feminists have celebrated Zuker's ruling as a long-overdue victory—especially after former radio personality Jian Ghomeshi was acquitted of sexually assaulting three women in March—one court has already found that he went too far. On August 3, Ontario Superior Court Justice Michael Quigley reversed Zuker's decision to revoke bail and ordered Ururyar released pending sentencing. Quigley noted that the number of references to academic texts on gender-based violence in Zuker's judgment "raises questions of having a predisposed mind."

This swipe at Zuker's impartiality will no doubt help the defense in its appeal, which claims the trial judge "applied different standards of scrutiny to the evidence of the complainant and that of the appellant" and used "illogical and/or irrational reasoning" in his verdict.

Whatever its outcome, ururyar's case illustrates a genuine dilemma. Sometimes, rape happens in an intimate situation and involves intimidation but no violence. Proving such an assault beyond a reasonable doubt can be near-impossible. The presumption of innocence means that most of these crimes will probably go unpunished by the criminal justice system. Yet false accusations are also a non-trivial issue. It is particularly risky to convict solely on the accuser's word when young women are increasingly taught elastic and subjective definitions of consent—and when fact-finders are encouraged to explain away any contradictions in the accuser's story as evidence of trauma or "denial."

Back in 1977, at the dawn of rape law reform, pioneering feminist legal scholar Vivian Berger cautioned against "sacrificing legitimate rights of the accused person on the altar of Women's Liberation." That warning has never seemed so prescient.

An earlier version of this article appeared at Allthink.com.

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  1. Perhaps men who knowingly have sex with leftist feminists deserve their fates.

    1. We’re not talking about anyone who’s been foolish enough to sleep with the judge…

      Oh, wait, you were just talking about the accuser/accused.

  2. It reads like a Robbie, but smells like an ENB.

    1. New byline, could have been a cloning project gone awry.

      1. Cathy Young is not a new writer here, so not sure where you’re getting “new byline” from.

    2. At least it doesn’t smell like fruit sushi.

  3. OT: April Ross has a great ass. Not quite Misty May quality, but very nice.

    1. If you like mannish, flat, muscular white girl asses, sure.

  4. “Or the truth could be somewhere in between.”

    Ah, there’s the Cathy Young we know.

    1. Wait, we knew this contributer?

      1. Let me say “read some of her work before.”

      2. Cathy Young has been an occasional contributor to Reason for many years.

        I enjoy the perspective of a feminist who isn’t a completely insane Marxist.

  5. He also said that back at his apartment after they got into bed, he told Gray he wanted to end their relationship and mentioned being annoyed by her behavior at the bar.

    Not especially bright for a graduate student.

    1. Actually, given academia, it’s about par for the course. The longer you’re there, the more out of touch with reality you are.

      1. Oh, yeah. Long before the current spat of infantilizing college youth got underway, grad school was pretending to pay kids to pretend to work, thereby allowing them to avoid having kids, buying houses, and getting real jobs.

    2. Typical college student. I once broke up with a girl. Then had sex with her. Then told her I was serious about breaking up. While still in bed with her.

  6. Gray might simply have reinterpreted the sex as coercive because she felt hurt and humiliated?especially with her memories clouded by alcohol and, perhaps, filtered through ideology.

    These days rape is in the eye of the beholder, and if she beheld rape, even not until days later, he’s considered guilty.

    1. There is a world of difference between RAPE and REGRET but unfortunately, that difference is lost on this generation of college student. We used to have “the walk of shame”, but has now been replaced by “the walk of blame”.

      1. I suspect that the “walk of shame” is still a lot more common, though this does seem to be a growing problem.

        I have to believe that the great majority of people still have a conscience and wouldn’t railroad an innocent person because they made a choice they later regretted.

        1. I have to believe that the great majority of people still have a conscience and wouldn’t railroad an innocent person because they made a choice they later regretted.

          This, IMO, isn’t the problem as much as the majority of people lacking all conscience when their friends ask them if they thing they maybe-sorta, mighta-been raped. Then they seem all to happy to lay rail and shovel coal.

          1. I think there’s lots of pent up regret/vengence that gets channeled in these sorts of situations even, or explicitly, from women who don’t/haven’t have sex. The sort of thing that would diffuse behaviorally when done 1st person or not by proxy.

        2. I have to believe that the great majority of people still have a conscience and wouldn’t railroad an innocent person because they made a choice they later regretted.

          Good luck with that.

          My experience with drunk college feminists is that they tend to attempt to post-hoc rationalize their shitty decisions once they sober up. More often than not, they blame their friends for letting them go home with a dude that doesn’t meet their standards the next morning, and have a hard time believing that they went home with that guy. I’ve definitely had acquaintances imply that a guy tricked or coerced them into bed, when my much-more-sober recollection was of a sloppy, blacked-out drunk girl throwing herself at the guy. I don’t think it’s too hard of a leap for a girl like that to shift the blame from her friends (for not protecting her from “predatory” guys) to the guy (because “I would never have willingly gone home with him”). Add in a few booze-addled snippets of memory, and you have the start of a false rape claim.

      2. We used to have “the walk of shame”

        #CompletelyShamelessAmerica

      3. They both begin with the letter “r” which is good enough for a modern progressive.

    2. reinterpreted the sex as coercive

      Its hard for me to read this as anything other than “imagined she was raped”.

      1. Sometimes I get the Triple-Buster 3/4 pound burger at Dairy Queen.

        I always want it. I want it more than anything. The picture looks freaking awesome.

        Afterwards, I always lay on the floor and wonder “why do I pay $9 for food that makes me feel like I’m dying?”

        If that burger were sex, would I be a rape victim?

        1. Read ‘Phishing for Phools’ by Akerloff and Schiller. They (both leftists) essentially argue that. Cinnabon is stealing from you when they ‘get’ you to buy their delicious victuals by letting their aromas escape through the hallways of the airport into your reluctant nostrils.

          Suffice it to say, the state has to come in and punish those bastards for such a crime. The solution clearly is to extend the feminist interpretation of regret as rape (and the state’s response thereto) to the regulation of the sale of all goods and services.

  7. It is particularly risky to convict solely on the accuser’s word when young women are increasingly taught elastic and subjective definitions of consent…

    Ms. Young is a traitor to her own gender!

    1. I can’t figure out how you convict someone of raping a woman the night she sends you a text saying “let’s have hot sex”.

      If she is too drunk to take a cab, she is too drunk to be a reliable witness.

      How is choosing his bed over choosing a cab not consent?

      1. ‘Rape’ shouldn’t be a crime by itself, it should simply be in the assault category. If you have zero displayed signs of having been assaulted, sorry. You wait six months, and your ‘scars’ have healed? Also sorry unless there are witnesses.

        At least that’s my opinion, since there should be zero crimes that don’t require some form of actual proof.

        No one’s word should ever be good enough to get someone thrown in jail by itself. Ever.

      2. Remember kids: no means no, yes means no, and silence means no.

  8. People who perpetuate rape culture are guilty of logical phallus-ies.

    1. We have a winner

      1. Wouldn’t that be a Weiner?

        1. Um, Wiener, actually.

  9. The case is a classic he sad/she said

    Indeed.

      1. I believe you meant “So you clam.”

  10. It’ll be fascinating to see how this fares on any appeal. A verdict based purely on witness credibility usually wouldn’t have a chance, but the near-stream of consciousness judgment and appeals to judicial notice would at least pique my interest if I were on the appellate bench

    1. There are times I want to be an appeals court judge just so I can write snarky responses to rulings like this and have them mean something.

      But then again, I am biased (in a different manner from this judge, who appears to have a bigger bias problem than even me)

      1. Cut on the bias.

  11. And another thing: What’s with the instances of lower-case “ururyar”?

    After all, the guy’s no bell hooks.

    1. The court case cost so much he’s undercapitalized?

      1. In the case of the sexist marxist, she just didn’t understand capitalization of either the linguistic or economic variety.

      2. *facepalm* Really?!

  12. “Men have penises, therefore – them rapists!”

    Who needs logic? And if you say ‘everyone’, you’re a rape enabler!

  13. the crusade against “rape culture”

    So she’s a modern day Knight Templar.

    1. Will the pope after Pope Marx found some new militant orders?

    2. The quest for better anti-STD drugs?

  14. My rax dollars at work. Imagine when it’s “free”

    http://nbc4i.com/2016/08/11/de…..e-funding/

    1. ruh roh.

  15. What I see here is disturbing. Even if you take Gray’s case at face value, there was no violence. There wasn’t even the threat of violence. He said mean things to her and behaved badly. Even her own e-mails indicate she didn’t protest.

    I have no patience for actual rapists. But it isn’t clear, even in the worst of circumstance that Ururyar is a rapist.

    Letting judges redefine the law to suit their own personal whims only leads to a world where the law is not sacrosanct.

    1. “Letting judges redefine the law to suit their own personal whims only leads to a world where the law is not sacrosanct.”
      I think that’s precisely the idea. Several decades of legal ‘scholarship’ has been invested in ‘proving’ that the law is ‘indeterminate’ and can be interpreted an infinite number of different ways, and therefore the best way to utilize the law is as a tool with which to uplift the ‘oppressed’ and overthrow the ‘oppressors.’ At my old college I knew some law professors and students who taught or learned this. Disturbing indeed.

  16. Whatever its outcome, ururyar’s case illustrates a genuine dilemma

    Not really. The guy here is going to jail based solely on uncorroborated testimony from a woman who uncontrovertibly never said “no” to sexual advances: “If you don’t consent to sex, but you don’t not consent, I don’t know what is that?”

    That’s called injustice, not a dilemma.

    1. Implied consent. Its a thing. And she gave it, based on her own testimony.

      1. And she started with overt, written consent.

        1. I don’t think he should have been found guilty, and I’m not saying he committed rape, but I don’t think the text message from earlier is very relevant. People can change their minds about having sex, and given that they both agree there was an argument and a breakup in between, I think it’s reasonable to think that a lot of people would have changed their minds about it in that situation. That doesn’t mean she didn’t consent, but the text also doesn’t mean that she did.

          1. People can change their minds. Even in the middle of sex a participant can decide he or she has had enough.

            But the question at trial is whether that withdrawal of consent is proven beyond a reasonable doubt, and I don’t see how that’s possible in this circumstance.

            1. Exactly. Changing your mind does not constitute revocation of consent. You actually have to inform the other party(s) that you have revoked consent, and unless you have duct tape over your mouth or are unconscious or otherwise incapacitated, failure to revoke consent implies continuing consent.

              This is how the law works in every other realm of life. If I get into a taxi, halfway through my journey, if I decide I want to get out, that alone does not make it kidnapping; I have to declare that I want out of the car, and only then, if the driver refuses to let me out is he kidnapping me. Qui tacit consentire videtur. It’s only with sex that we apply a different standard.

      2. Is it more clear in the actual testimony? In the article, it just states that, after saying he was going to fuck her, she claims he forced her to perform oral sex and that he raped her vaginally. Does her testimony demonstrate that she implied consent? I know that it isn’t necessary to explicitly state “yes,” but to my understanding absence of “no” or active physical resistance doesn’t constitute implied consent so I’d be interested in hearing more about what exactly she said.

        Also, does Canadian law differ from American law in this regard?

  17. a real court?albeit in Canada

    Shouldn’t that be “‘real’ court”.

  18. The alleged rape?and I say “alleged,” because after reading the 180-page judgment I see no grounds for a finding of guilt beyond a reasonable doubt…

    “Pffft, you’re not a lawyer, hell, I bet you didn’t even go to the Columbia School of Journalism.” /SJW tardo

  19. She said that he continued shouting and berating her during their walk and then at his apartment

    There was no independent evidence to strongly support either account.

    [Emphasis added]

    Apartments are generally located in apartment complexes. If he was shouting at and berating her, wouldn’t one of his neighbors have heard something? What about the cab driver? If he was angry and verbally abusive during the cab ride, wouldn’t the driver have overheard something? I find it hard to believe that there would be no witnesses to corroborate at least those parts of her story, which would seem to call into question her overall credibility. But that’s probably my cis-hetero shitlord maleness talking.

  20. He asserted?incomprehensibly?that “we don’t even know what the phrase ‘hot sex’ means.”

    That admission says a lot. I’m middle-aged, ugly, and have the personality of a bent shitcan. But I still know what the phrase “hot sex” means (even if it’s nothing but a dim albeit oft-replayed memory).

  21. Gray’s story may well be substantively true. If so, ururyar’s actions certainly amount to sexual assault.

    No, it doesn’t. No violence, no threat of violence. She got naked and climbed into his bed.

    Submission out of fear is not consent, and even if Ururyar made no over threats, his behavior as described by Gray sounds threatening and coercive enough.

    Submission out of fear of violence is not consent. Submission to emotional pressure is consent at least for criminal law purposes. It matters what Gray threatened, you know. Threats of violence are one thing. Threats of, I don’t know, exactly how did he threaten her, again, are not.

    Her earlier sexual offer is irrelevant to her state of mind at that point.

    Her state of mind isn’t the only one that matters here. If he had reasonable grounds to believe she was consenting, based on her earlier offers that night and her lack of protest or resistance later, then he is innocent of rape.

    That’s the difference between affirmative consent (the only that matters is what inside the “victim’s” head) and rape (what matters is whether the accused had mens rea, that is, reason to believe the sex was nonconsensual).

    1. He should have wiped her with a cloth.

    2. Mens rea? Aha! Cis-hetero shitlord mansplaining!

  22. “If you don’t consent to sex, but you don’t not consent, I don’t know what is that?”

    A person who must compare notes with another person who wasn’t present and who must be TOLD that they were raped, wasn’t fucking raped. Furthermore, that individual has demonstrated that they do not have the independent thought and decision making capacity that one would expect from an adult. Any rights and privileges that depend on such capacity should be revoked.

    1. Arguably, the 3rd party bears some responsibility/culpability for the slanderfraudrape as well.

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  24. Berger’s warning has never been heeded.

    Progressives view civil rights entirely as some kind of group thing. Individual rights don’t exist. Due process for the accused in rape cases “victimizes” women, so it’s got to go.

  25. “he sad/she said.”

    Lol! ain’t that the truth.

  26. Keep it up, womyns. Every time you pull this shit, wide-spread legal prostitution comes closer to being a thing – if the sexbots don’t beat them to it.

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  28. Seems that Canada’s courts are so infused with ideological feminism that it is time for Canadian men to consider moving south of their border.

  29. All men should charge all women the have sex with, with rape.

    1. “They’re sending us their rapists, they’re not sending they’re not sending their best people.”

  30. “If you don’t consent to sex, but you don’t not consent, I don’t know what is that?” I call it Questions From a Gormless Indoctrinated Fembot.

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