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Thoughts the evening before an appeal

An opinion piece by Stephanie Stella

Mandi Gray was raped in January 2015. Her attacker, Mustafa Ururyar, was convicted of his crime on July 21, 2016. The conviction was appealed. Tomorrow, July 20, 2017, the conviction will be overturned, and sent back to retrial. I can say this with near-certainty.The only part of me saying otherwise is my subconscious stubbornly clinging to the blind hope for a miracle. It’s the same as one feels when they hope that they will have a knowledgeable judge assigned to their rape case. It’s that hope against hope. The hope, that, when they walk into the lion’s den, they will be thrown a sword, instead of a meat suit.

This time, it’s worse than that. Gray had been assigned a knowledgeable judge. What’s more, she was also assigned a competent and knowledgeable Crown. Together, they were able to find the evidence, dismantle the rape-myth based suggestions put forward by the defence. They came to a logical conclusion based on facts, not myths. They did what the justice system is supposed to do. For that, they were condemned – accused of being biased due to their knowledge and refusal to fall for stereotypes. They were Galileo, and their accusers were the flat earthers, convinced this judge was a heretic.

The outcry after the verdict was immediate: Justice Marvin Zuker was ‘biased.’ He gave no solid reason in his verdict. He relied on feelings, the MRAs insist. Having been to the trial and verdict myself, I can say that that’s inaccurate. Zuker had a wealth of experience and knowledge under his belt. He saw Gray’s testimony for what it was – her reactions were symptomatic of trauma, not malice. He could only reach an acquittal if the defence could raise reasonable doubt. Their only weapons relied on rape mythology, which the Crown demolished. The defence did not raise reasonable doubt, and so Zuker closed the trial with a conviction. He added, to the surprise of some, a section of prose, where he expressed that there is an art to judging whether sexual contact was sexual assault. He’s not wrong. We’re talking about people, relationships, communication, perceptions, and emotions. There is no black and white here. In order to determine whether sexual assault occurred, one needs to be keenly aware of all these moving parts and their influences on each other. Most judges aren’t, and that is why sexual assault trials are notorious for coming to the wrong conclusion and causing additional trauma to the survivor, more often than not.

Zuker was keenly aware of all these components. He was aware of society, and the environment this trial was taking place in. He understood that nothing exists in a vacuum. He sought to address this head on.

In the appeal hearing months ago, Justice Michael Dambro made it clear that he did not feel that addressing the bigger picture was necessary. In fact, he took issue with the fact that Zuker ever mentioned it at all. According to Dambrot, Zuker shouldn’t have made such a show about the importance of separating fact from fiction; he should have just done his job. The punch line it is his job separate fact from fiction; and in this context, it is a job so often botched by his contemporaries.

It’s that hope against hope. The hope, that, when they walk into the lion’s den, they will be thrown a sword, instead of a meat suit.

The whole merit of the appeal is lost on me. The basis of the appeal is that Zuker showed bias during the trial. From my view in the gallery, he was stone faced and impossible to read during the trial. Even during the verdict reading, we in the audience spent the first half having no idea which direction he was going to lean. It was only afterward that he started showing any hint of disdain towards the accused. Zuker was accused of having a predisposed mind.

The appeal hearing itself, however, was a textbook example of a predisposed mind. Dambrot clearly already made up his mind before hearing any arguments. He seemed to go through the hearing as a cursory. Through all of the defence’s submissions, Dambrot was interacting with the defence counsel in a jovial, approving way – he was visibly and verbally agreeing with the defence’s position as he spoke. When the counsel for the Crown stood up to speak, the atmosphere changed palpably. Dambrot argued every point the lawyer brought up, repeating how he “just didn’t understand” why Zuker felt the need to address the points he did in his verdict. For all his lack of understanding, he didn’t seem to make an effort to try to rectify that. He interrupted the counsel for the Crown countless times as she spoke, and even talked to her in a condescending manner, both behaviours unbecoming for a judge of the Superior Court.

Dambrot displayed a lack of understanding in a different, perhaps more dangerous: way as well: he clearly had no idea of the realities of sexual assault or rape culture at large, and absolutely no clue of what really happens in sexual assault trials. Dambrot is uninformed to the point that he was actually uttering not only factual inaccuracies, but straight up untruths. Dambrot claimed that judges routinely recognize and reject rape myths in court (they don’t, but often in fact rely on them). Expanding on this inaccuracy, Dambrot made the astonishing claim that the myth that rape victims report their assaults to advance a secret agenda doesn’t exist at all. In his words, there is no myth that people make up their own rapes to advance their careers. Which is exactly why my own rapist’s defence lawyer dug up my history of speaking out about my past abuse – because she didn’t want to paint me as a scheming activist, and the judge never concluded that I “came to court with an agenda” as an influencing decision when she wrote the acquittal (spoiler, Dambrot: all of that did happen). Even more astonishing, Dambrot seemed to ignore that that had happened in Gray’s very own case, in the form of Ururyar’s defence lawyer questioning her about her turn to activism following her rape (which any trauma informed person, legally appointed or not, can tell you is a very common reaction in someone who has been wronged, and in fact is evidence toward the assault).

Dambrot is uninformed to the extreme, and unwilling to learn. This is the most dangerous type of ignorance. Not only that, but he also very obviously made up his mind before the appeal began, which is incredibly ironic, given the circumstances of the appeal. It is absurd that the behaviour of a sitting judge should make it obvious whose side he will take from the very beginning. That is the very definition of a predisposed mind. Coupled with his woeful lack of knowledge on the complex subject he is assigned to adjudicate, I can say quite confidently that tomorrow’s decision will not be one that the public can trust.

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