In the recent case of R. v. H.E., Ontario Superior Court Justice Robert Smith acquitted a man charged with sexually assaulting his wife, even as he also declared that “marriage is not a shield for sexual assault.”
This is a very disturbing case, for a number of reasons.
Can rape exist within marriage?
Prior to 1983, it was not illegal for a man to rape his wife in Canada. This legal reality reflected the old notion that women were the property of their husbands, which meant their husbands could do with them as they pleased, free from any external interference or regulation.
However, in 1983, not long after women’s equality rights were entrenched in the Charter of Rights and Freedoms, the rape provisions in Canada’s Criminal Code were given a significant overhaul. Among the changes: the term rape was removed from the law and replaced with the language of sexual assault, and it became a crime for a man to rape his wife.
Since then, the law of sexual assault has continued to be tweaked, primarily through precedent-setting cases decided by the Supreme Court of Canada. Of greatest relevance to this case, the legal approach to consent has been refined to its present state, which requires that active, express, ongoing consent be provided. In other words, just because you consent once does not mean you have consented for all time to come.
In his decision, Justice Smith does not seem to grasp that this is the law. In finding that the husband lacked the intent to harm his wife, he relied on the fact that the wife continued to have sexual contact with him for a number of years after the incident which led to the criminal charge of sexual assault, without understanding that women can say yes some of the time and no other times or that women have many reasons to remain in a marriage, even when it is abusive.
This raises a lot of questions
Is Justice Smith saying that there is no expiry date on consent to sexual contact in marriage? That the act of marriage itself creates a state of permanent, tacit consent?
What if, as in this case, it is an arranged marriage where the two people may not really know one another? What if it is a forced marriage?
Was the husband acquitted because he did not understand the law of consent even though ignorance of the law, in fact, is not a defence? This question becomes even more perplexing in the context of the judge’s statement that he found the wife credible when she testified that she told her husband to stop many times during the incident that led to criminal charges. How, then, does it matter whether or not the husband understood the law of consent? Surely, being asked or told to stop several times is clear enough for anyone to understand. Surely, it cannot be said of someone who does not stop, even in the face of repeated requests, that he lacked the intent to harm.
What are we to make of the Justice Smith’s comment 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.”?
Does this mean that an otherwise criminal act is not a criminal act if the victim does not understand it to be such? Put simply, and with no disrespect to Justice Smith intended, this just does not make sense.
As a recent opinion piece in the Globe and Mail noted, the decision in this case is rife with rape myths, which appear to remain alive and well, to the ongoing detriment of women.
All too common
Of course, the public does not hear about most women who are raped by their husbands because women in this situation almost never report this aspect of their abuse to the police. They don’t because they are ashamed; because on some level they have absorbed societal attitudes that the marriage contract requires them to provide sex when their husband wants it; because they are afraid they won’t be believed; because they want to save their marriage and protect their husband.
But those of us who work with women who have left abusive marriages know that a significant number of those women have been sexually assaulted many times over the course of their marriage and that many of them continue to be sexually assaulted even after they have left the relationship.
We know the shame those women feel, but we also know their anger: anger that they have been subjected to this very intimate kind of abuse and anger at the system that does not acknowledge it.
Mandatory training for judges on sexual assault, including sexual assault within marriage, cannot come soon enough for these women.