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.