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November 29, 2017 1:59 pm

Cultural Defense in Ontario Marital Sexual Assault Case Draws Appeal

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The cover of a Koran. Photo: Wiki Commons.

Canadian prosecutors have appealed a judge’s ruling acquitting a Palestinian Muslim of sexually assaulting his own wife, because of cultural beliefs that the wife should consent any time he wanted, the Ottawa Citizen reports.

It initially appeared to the Investigative Project on Terrorism (IPT) that the deadline for such an appeal passed last week, but that may have been due to some technical legal issues, including those protecting the identities of the people involved, said Scott Newark, a former Alberta Crown Prosecutor and Vice Chair of the Ontario Office for Victims of Crime, who has written about the case for the IPT.

The ruling, Newark wrote earlier this month, placed religious and cultural beliefs above secular law. And it ignored provisions in Canadian law that say ignorance of the law is not a defense.

“Internal procedures aside,” Newark said Friday, “this is very good news for the people of Ontario and indeed Canada, as it means this critically important issue is still before the courts — and that the Government of Ontario is defending our secular rule of law.”

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The identity of the couple involved is protected under Canadian law. The case began after they separated and, during custody talks, the wife described a 2002 incident in which she said her husband forced her onto a couch, pulled off her clothes and forced sex on her — despite three instances in which she told him to stop.

Ontario Superior Court Justice Robert Smith described her as a credible witness and found the husband’s testimony unreliable. But he acquitted the husband anyway, saying that prosecutors failed to prove that he had the required criminal intent — i.e., that he knew the assault was a crime despite any cultural or religious mores.

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