Cultural
Defense in Ontario Marital Sexual Assault Case Draws Appeal
by IPT News • Nov 24, 2017 at
7:35 pm
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Canadian prosecutors have appealed a judge's ruling acquitting a
Palestinian Muslim of sexual assaulting his own wife because of cultural
beliefs that the wife had to consent any time he wanted, the Ottawa
Citizen reports.
It appeared the deadline for such an appeal passed last week, but that
may have been due to some technical legal issues, including those
protecting the identities of the people involved, said Scott Newark, a
former Alberta Crown Prosecutor and Vice Chair of the Ontario Office for
Victims of Crime, who has written about the case for the Investigative
Project on Terrorism.
The ruling, he wrote earlier this month, placed religious and
cultural beliefs above secular law. And it ignored provisions in Canadian
law which say ignorance of the law is not a defense.
"Internal procedures aside," Newark said Friday, "this is
very good news for the people of Ontario and indeed Canada as it
means this critically important issue is still before the Courts and that
the Government of Ontario is defending our secular rule of law."
The identity of the couple involved is protected under Canadian law. The
case generated after they separated and, during custody talks, the wife
described a 2002 incident in which she said her husband forced her onto a
couch, pulled of her clothes and forced sex on her despite three instance
in which she told him to stop.
Ontario Superior Court Justice Robert Smith described her as a credible
witness and found the husband's testimony unreliable. But he acquitted the
husband anyway, saying that prosecutors failed to prove he had the required
criminal intent – that he knew the assault was a crime despite any cultural
or religious mores.
"Marriage is not a shield for sexual assault. However, the issue in
this trial is whether, considering the whole of the evidence, the Crown has
proven the allegations beyond a reasonable doubt."
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