An immigrant from a Muslim country living in Canada was found not guilty of raping his wife because he was in the belief that he had the right to sex with her, even when it was nonconsensual. Ontario Superior Court Justice Robert Smith ruled that the married couple had engaged multiple times in non-consensual sex, but said that the husband could not be convicted because there was no criminal intent, which is known in legal terms as mens rea.

"Marriage is not a shield for sexual assault," wrote the judge in his 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." 

Both husband and wife testified that they believed that a husband is legally entitled to sex with his wife at any time. Legally separated from her husband in 2013, the wife learned that she is allowed to refuse sex with a man, even from with her husband. An incident that occurred in 2012 was what brought the couple to court. The wife is a Palestinian who lived in Kuwait before emigrating to Canada. They were parties to an arranged marriage.

Justice Smith recognized that the husband proved to be an evasive witness, rejecting his account as unbelievable. The husband denied claims that he had forced non-consensual sex on his wife. The judge said the man was evasive and argumentative as a witness and rejected his account as not believable. 

The court heard that in 2002, the husband had undergone a hair transplant. A physician, testified the husband, told him to abstain from sex for two weeks after the surgical procedure. He told court the alleged incident could not have happened because he had followed that advice. “The accused did not call any medical evidence to show this was standard medical practice,” Justice Smith said, “and I find his evidence in this regard does not accord with common sense to a reasonably informed person.”

The wife alleged that her husband had pulled her onto a couch, pulled off her pants and proceeded to have sex with her. This came despite her repeated pleas to stop. Carrolyn Johnston of the Ottawa Coalition to End Violence Against Women's Carrolyn Johnson denounced the court’s decision: "Any sexual contact without explicit and ongoing consent is sexual assault — regardless of the relationship." Johnson added that the husband may have believed he had a right to sex, “but Canadian sexual assault law is clear and was amended to include sexual assault against a spouse in 1983," she added.



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Martin Barillas is a former US diplomat and the editor of Spero News.

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