A myth or a miss?

Rape myths are genuine: erroneous, stereotypical and prejudicial beliefs woven together to justify or exculpate sexual assault at trial. Seen it happen too many times to count with sexual brutes waltzing out of court after a complainant has been sliced and diced on the witness stand, portrayed as slut, as liar, as rueful morning-after accuser.

But this one was a miss . . . by a mile.

By a judge, specifically, who had his guilty verdict of a sex assault defendant overturned on appeal Thursday, the decision rendered by a justice who couldn’t make legal heads or tails out of the 179-page written judgment that convicted Mustafa Ururyar of sexual assault against a colleague and casual sex partner.

Consensual sex, Ururyar had argued, with considerable evidence to support that position. But the trial judge, Justice Marvin Zuker, paid the defense case no mind, dismissed out of hand the core essence of consent.

“The trial judge’s failure to understand that consent was the central issue in this case, standing alone, casts doubt on the adequacy of his reasons,” Superior Court judge Michael Dambrot wrote (and read aloud yesterday) in overturning the conviction and ordering a new trial for Ururyar. “But there is more.”

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Incomprehensible and illogical — Dambrot’s scathing words — in its entirety, with Zuker failing to source multiple passages about so-called rape culture seemingly lifted from the Gospels of Rape, running a gamut from scholarly articles to poetry to newspaper stories.

“This was a simple trial,” Dambrot observed. “In a case such as this one, the trial judge needed to do little more in his reasons than explain to the appellant (Ururyar) why his evidence was not believed, why his evidence did not raise a reasonable doubt and why the complainant’s evidence was believed. Unfortunately, despite the length of the judgment, it fails this test.”

Moreover, it failed the test of judicial scrutiny upon appeal.

Zuker’s manifesto had been greeted with cheers in his courtroom by activists and advocates, the sisterhood that had surrounded Mandi Gray — she’d refused the anonymity traditionally accorded to sex assault complainants — and applauded the hallelujah moment when a judge had finally got it right.

Except the now-retired Zuker got it every-which-way wrong.

Anybody with a smidgen of courtroom experience knew his astonishingly hostile and tendentious decision was destined for reversal on appeal.

Perhaps spurred by the disastrous Jian Ghomeshi case — for a while the two trials ran concurrently — Zuker clearly took it upon himself to haul the justice pendulum far in the opposite direction with his lengthy dissertation on rape myths, victim-blaming, the meaning of informed consent, memory affected by trauma and an inadequate legal system in urgent need of some consciousness-raising. All true. But this was a frail case to hang it on and Zuker committed the cardinal suit of disregarding — outright renouncing — contradictory evidence in a deplorable rush towards faulty and stunningly sarcastic judgment.

In truth, he set back the evolution of sexual assault adjudication.

Mustafa Ururyar — he was sentenced to 18 months — may, indeed, be guilty of sex assault but he is not yet. They’ll have to do it all over again. Previously, Gray had declared she wouldn’t go down the re-trial road, although on Thursday she hedged: “I think that assumes that victims have any choice in the matter. Ultimately, it’s up to the Crown. And, if the Crown wants to proceed, it doesn’t really matter what I want.”

Gray said she wasn’t surprised by the appeal ruling; indeed, expected it. In court she sneered, snickered, yawned.

“This sends a loud, clear message to people who are sexually assaulted: don’t bother to report it, because you’re going to look at the next two or three years of life being wrapped up in a system that really doesn’t care about you.”

Historically, that has often been the case.

But not in this case. The bias against Ururyar was overwhelming. Zuker issued a pre-written sentencing decision immediately after hearing defense submissions without even taking time to consider those materials; he was endlessly sarcastic and demeaning; he denied Ururyar bail pending sentence (hastily overturned on appeal).

There was precious little adherence to the crux principle of innocent until proven guilty. From the moment Gray testified, Zuker had in my opinion made up his mind and jumped through incoherent hoops to get there.

There isn’t sufficient space here to review all of Zuker’s errors, drenched as they were in contemporary dogma, the dissection of cultural rape doctrine. But the flavour of it can be distilled from some select excerpts:

The sext: On the evening of Jan. 30, 2015, Gray sent a text to Ururyar, inviting him to a celebration at the Victory Café for a successful CUPE strike vote. (Both Gray and Ururyar were graduate students and teaching assistants at York U. They’d had a casual sexual relationship for about two weeks. “I’m at Victory come drink and then we can have hot sex.”

A sexual invitation can, of course, be retracted. If Gray did so and Ururyar imposed sex on her, against her will, that’s sexual assault.

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But what Gray did was delete the message before going to police and never told them about it.

Zuker’s view was that the text could be read in different ways; could, in fact, render “his alleged guilt more likely, as perhaps providing a stimulus for his later sexual assault.’’ That it might also have presented Gray as a willing participant, indeed, the instigator of whatever sex ensued, was given short shrift.

Dambrot writes: “It seems to me that the trial judge misunderstood the import of the text message evidence. He was, of course, correct that the past sexual conduct or sexual predisposition of a complainant is evidence, neither of the complainant’s predisposition to have sexual relations with the accused, nor of any belief by an accused that consent to sexual relations in the past means consent to further sexual relations. But the text message here was not evidence of past sexual conduct or past sexual predisposition. It was part of the narrative of the present encounter.’’

The grope: It was Gray, Ururyar testified, who’d rubbed his thigh in the bar and again in the next joint they visited, and that he was uncomfortable with public displays of affection.

Zuker: “Mr. Ururyar gave evidence that Ms. Gray personally assaulted him. Yes, assaulted him, groped him in fact at the Victory Café.

“It never happened.”

Says who, apart from Gray? Says nobody.

The walk: It was Gray, drunk, who asked if she could spend the night at Ururyar’s apartment. He said fine, but there would be no sex, because he wasn’t feeling well. While strolling home, Gray testified, Ururyar berated her for failing to convince a girlfriend to join them in three-way sex.’’

Zuker: “Lovey-dovey on the way home, never happened,” the judge snarked, referring to the defendant’s version of events. “Attacking Mr. Ururyar under the covers in bed, never happened, again a great illusion of delusion of Mr. Ururyar, but also a joke.’’ This in regards to the defendant’s testimony that Gray had initiated sex with him when they got home. “A fabrication, credible never. I must and do reject this evidence.”

Gray claimed Ururyar forced her into having sex, ignoring her explicit “No.”

Weirdly, illogically — and this was a thick strand in Dambrot’s decision to overturn — Zuker tossed off the key issue of consent.

“Mr. Ururyar denies he sexually assaulted Ms. Gray. Consent is therefore not an issue and, more importantly, Ms. Gray’s historical text, even if alleged by Mr. Ururyar, may well be irrelevant.”

Does that make sense to anybody? Dambrot described Zuker’s statement as “baffling.”

Equally baffling was Zuker’s insistence that the complainant’s behaviour that night did not raise any reasonable doubt in his mind. Dambrot: “The apparent explanation for this conclusion, which follows, hardly seems to engage the issue at all. Instead, it very quickly descends into a virtually incomprehensible mixture of references to literature about rape and the trial judge’s own opinions on the subject.’’

Conflicts in evidence were never reconciled. Credibility concerns were never explained.

From the outset Zuker saw a rape victim, not a sexual assault complainant — what he said is irrelevant, what she said is truth.

That is precisely what activists are demanding: Guilty until proven innocent.

Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday