Did a ‘Feminist’ Judge Pave the Way for Mandi Gray’s Rapist to Appeal?
"He spent a lot more time talking about the rape myths than the evidence."
While sexual violence advocates were celebrating the damning rape conviction of Mustafa Ururyar in a Toronto courtroom last July, Mandi Gray, the complainant in the case, was skeptical.
Trial judge Marvin Zuker quoted feminist readings like the Maya Angelou poem "I Know Why The Caged Bird Sings" while delivering a slamming indictment of both Ururyar's defence (that the sex was consensual) and the justice system for propping up rape myths.
In light of Jian Ghomeshi's acquittal, the outcome felt good to those who've been fighting for legal reform. But immediately afterward, Gray, a York University PhD student, told VICE Zuker's zealousness would likely pave the way for Ururyar's appeal.
"I was really frustrated because it was just so much material and so unorthodox."
Her instincts may have been dead on.
Ururyar, also a York student, launched an appeal of his conviction in downtown Toronto Tuesday, with his defence lawyers and the appeal judge Superior Court Justice Michael Dambrot taking aim at perceived bias by Zuker. In fact, Zuker's behaviour in court, rather than the actual evidence, seemed to form the basis of the appeal.
"He spent a lot more time talking about the rape myths than the evidence," Dambrot reportedly said, noting that while it's important to dispel myths, "you do that by deciding cases correctly and appropriately, not by using your podium of reasons for judgment as a place for your own manifesto."
Zuker's 179-page judgment last summer included statements such as, "No other crime is looked upon with the degree of blameworthiness, suspicion, and doubt as a rape victim. Victim blaming is unfortunately common and is one of the most significant barriers to justice and offender accountability" and "it doesn't matter if the victim was out drinking, out alone at night, sexually exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped." Nice guys can and do rape, he stressed.
He also gave Ururyar the maximum sentence for summary sex assault—18 months in jail—and ordered him to pay $8,000 in Gray's legal fees at a hearing in which he described rape as "murder of the soul."
Dambrot criticized Zuker for issuing his sentencing decision prematurely and without adequately considering the defence's submissions.
On Tuesday, Ururyar's lawyer Mark Halfyard told the court Zuker's judgement appeared to be both biased and at times difficult to follow.
Michael Lacy, vice president of the Criminal Lawyers' Association, told VICE Zuker's actions will make a successful appeal more likely because he failed to act judicially.
"Rather than approaching the case based upon a careful consideration of the evidence and applying the evidence to the legal principles, he appears to have used the case as an opportunity to promote an agenda," he said.
In Lacy's view, this isn't about Zuker's "feminism" infecting a judgment, because courts should already reject rape myths and stereotypes.
"What is important is that having rejected stereotypical thinking about consent and rape, we don't adopt equally pernicious assumptions about men and their tendency to rape and/or the inherent believability of complainants."
But the recent acquittal of a Halifax cab driver who was caught with an unconscious woman who didn't have pants on in the back of his car has once again fuelled anger over the criminal justice system's treatment of sex assault cases.
Barb MacQuarrie, community director at Western University's Center for Research & Education on Violence against Women & Children said she feels conflicted over the Zuker judgment and its fallout.
While she said she understands why the appearance of objectivity is important, "every legal system has to revolve and reflect current social values… or it can't be just and fair."
MacQuarrie pointed out that while Canada has very progressive sex assault laws on the books, the Halifax case is just one example of how those laws aren't necessarily being interpreted in a fair way.
As for Zuker, who is now retired, MacQuarrie said it's clear that the issues he addressed during Ururyar's conviction were ones he felt passionately about and had been mulling for a long time. She added his analysis isn't necessarily invalid.
"I feel for the judge who seized the moment to leave a legacy. His last opportunity to really make all this clear within a legal context… But when we look at really how things get decided in our legal system, it was probably just a little bit too much all in one case."
Meanwhile, there's the survivor to consider.
If the appeal is successful and a new trial ordered, Gray said she likely won't go through it again.
"I don't have another two years to take off of my life to be doing this," she told reporters Tuesday. She has also started a #RAPEnomics hashtag to highlighthow costly it is for victims to go through the courts and is the subject of the upcoming documentary Slut or Nut: the Diary of a Rape Trial.
A decision on Ururyar's appeal will be released June 8.
Follow Manisha Krishnan on Twitter.