Who Is Justice Robert Smith? The Canadian Judge Says A Man Can Rape His Wife If He Thinks "He Had The Right"
In a controversial decision made last week, Justice Robert Smith of Ontario, Canada, ruled a man did not sexually assault his wife because both the man and his wife believed that he had "the right" to do so. Both the accused and his wife, who split in 2013 following an arranged marriage in Gaza, had testified that they believed that a married man could have have sex with his wife whenever he chose. (The man grew up in Gaza, while the woman, of Palestinian heritage, was raised in Kuwait.)
The ruling did not disagree that sex without the woman's consent had occurred on multiple occasions. However, the man was not guilty of sexual assault, Smith ruled, because of his deeply-held belief that a husband has the right to have sex with his wife. "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 wrote in his ruling.
"Marriage is not a shield for sexual assault," Smith clarified. However, he went on to rule that no crime had legally taken place.
The couple separated in 2013; it was only then that the woman learned that she had had the right to refuse sex from her husband. She went on to press charges against him for a 2002 instance of non-consensual sex.
The man, in response, claimed that the sex she described could not have taken place because he was in recovery from a hair transplant; the judge said his claims "did not accord with common sense," and dismissed them.
The case came down to not whether sex had taken place without one party's consent, or even how many times it had taken place, but whether the accused perpetrator knew that he was doing was a criminal act (this is in spite of sexual assault with a spouse being illegal throughout Canada). Even though the accused was not a "credible witness" when he gave his testimony, the judge ruled, and even though his act was legally a crime according to Canadian law, the ruling came down to whether he had mens rea — criminal intent — at the time.
Because both parties involved were not aware that sexual assault without both parties' consent was a criminal act, the man could not be legally charged of a crime, Smith said. "However, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt," he wrote; Smith ruled that it had not.