Man found not guilty of raping wife, thought they could have sex whenever he wanted

“The accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so,” the judge wrote.
October 20, 2017, 11:57am

A Canadian court has found a man not guilty of sexual assault against his wife based on the fact that he honestly believed he could have sex with her whenever he desired.

“I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so,” Ontario Superior Court Justice Robert Smith wrote in his decision issued this week. The Crown Prosecutor failed to prove the man intended to sexually assault his spouse, Justice Smith added.

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Women’s rights activists have long tried to raise awareness about consent within marriage, and provide information to ensure the laws around it in Canada are clear.

After the unnamed couple, who had an arranged marriage in Gaza, separated in 2013 and were in the middle of a custody battle, the wife told Ottawa Police that her husband had sexually assaulted her in 2002. The wife alleged that her husband grabbed her wrist and forced her to have intercourse with him in spite of her pleading with him to stop.

The husband repeatedly denied the accusations.

“Marriage is not a shield for sexual assault”

Throughout their marriage, the wife, a Palestinian former resident of Kuwait who eventually moved to Ottawa, told the court she used to believe it was her duty to have sex with her husband at his whim. She later learned that she had the right to refuse her husband’s sexual advances, the court heard, and that’s why she brought it to the police years later.

The judge said he found the woman to be a credible witness, unlike her husband, whom he described as evasive and untrustworthy.

Still, neither her testimony nor the Crown’s evidence was sufficient to convince the judge to find him guilty.

“Marriage is not a shield for sexual assault,” Justice Smith stated in the decision. “However, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt.”

Canada revised its spousal rape laws in the 1980s to make it illegal for a spouse to have non-consensual sex with his or her partner.

Prior to that shift a husband could not be charged with raping his wife as it was believed she would always be consenting to sex. That changed in 1983 after a new law was passed criminalizing sexual assault against spouses.

The UN High Commissioner of Human Rights declared spousal rape a human rights violation in 1993.