A man has been cleared of raping his wife after a judge ruled that he did not know his behaviour was criminal in Canada.
Ontario Superior Court Justice Robert Smith said prosecutors had failed to establish that the man knew it was against the law to have sex with his wife without her consent.
Justice Smith explained: ‘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.’
The case related to an alleged assault in 2002, when the Palestinian woman – who became the man’s wife in an arranged marriage in Gaza – claimed he pulled her pants down and had sex with her despite her asking him three times to stop.
Ontario Superior Court Justice Robert Smith said prosecutors had failed to establish that the man knew it was against the law the have sex with his wife without her consent. Pictured: Ottawa Court House
According to the Ottawa Citizen, she testified that she considered it her obligation to have sex with her husband and did not know it was a crime.
She said she did not consent to sex on many occasions but both of them were under the impression that he was within his rights.
But when she heard from a police officer years later about the true nature of the law, she brought forward a case about the 2002 incident.
The ruling, issued earlier this week, came after a five-day trial in June.
Smith explained in his ruling: ‘Marriage is not a shield for sexual assault.
‘However, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt.’
It has left campaigners furious, with the Ottawa Coalition to End Violence Against Women calling the ruling ‘disappointing’.
Carrolyn Johnston, the organisation’s acting executive director, said: ‘Any sexual contact without explicit and ongoing consent is sexual assault — regardless of the relationship.
According to the Ottawa Citizen, the wife testified that she considered it her obligation to have sex with her husband and did not know it was a crime. Pictured: A general view of Ottawa
‘He may have believed that he had a right to have sex with her as her husband, but Canadian sexual assault law is clear and was amended to include sexual assault against a spouse in 1983.’
The Sexual Assault Network and rape crisis centres in the city said they are now promoting public education campaigns to ensure the concept of consent is fully understood.
Children in Canada are already taught about consent from Grade 7.
The couple separated in 2013.
The case related to an alleged assault in 2002, when the Palestinian woman – who became the man’s wife in an arranged marriage in Gaza – claimed he pulled her pants down and had sex with her despite asking him three times to stop. Pictured: A file photograph of Gaza
The husband denied ever having sex with his wife without consent and also specifically denied the 2002 incident.
His defence was that during the period of the alleged incident, he had been told to abstain from sex after having a hair transplant.
But the judge dismissed it, explaining there was no evidence to show it was standard medical practice to abstain from sex in such cases.
The judge also said the husband was argumentative as a witness and said his defence was unbelievable.