Man Acquitted of Raping Wife Because He Thought He Could

Cultural acquittal decried on all sides

A Palestinian man in Ottawa, Canada has been acquitted of raping his wife because both he and she thought he could have sex with her anytime he wanted to. Andrew Duffy, a court reporter for the Ottawa Citizen, writes that the couple in question were immigrants that didn't understand the law in Canada.

The man was part of an arranged marriage in Gaza. His wife, a Palestinian who grew up in Kuwait, lived in Ottawa and the family settled in this city. She testified that during their marriage, she considered it her obligation to have sex with her husband. Often, she told court, she did not consent, but they both believed it was his right.  

Canada has had laws on the books for decades saying that just because a couple is married, doesn't mean rape can't happen. In fact, in his ruling Judge Robert Smith of the Ontario Superior Court of Justice wrote that he didn't doubt sex happened without consent.

“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,” Smith said.  

So why then was the man acquitted?

Partly because the judge said the prosecutors did not prove their case including that they had, "failed to prove that the accused had formed the required criminal intent — mens rea — to sexually assault his wife in 2002."

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

The alleged sexual assault happened in 2002 when the wife says her then husband pulled down her pants and had sex with her even though she didn't want him to. But she admitted that she believed that having sex with her at any time was his right, something she didn't find out was incorrect until speaking to a police officer about a custody problem in 2013.

She pressed charges against her estranged husband at that point, the ruling last week acquitting him has been blasted by politicians on all sides and will likely be appealed.