Wednesday, 2 September 2015

A difference in culture is not a defence for rape

The Ontario Court of Appeal has ordered that the name of the person I am writing about cannot be named in order to protect his wife and children from embarrassment so I will refer to him as ‘the respondent’ which means someone who is the subject of the government’s appeal of a former court decision.                            

The respondent and his now former wife were married in Iran in 1996. They have two sons born in 1997 and 1999. While they lived in Iran, it was a regular routine for the respondent to assault his children and his wife and violently rape her. This pattern continued when the family moved to Canada in 2009.              

He may have got away with raping his wife in Iran but in Canada and the United States, a husband cannot sexually abuse his wife. All women including wives in those two countries have the right to refuse to have sex with a man irrespective as to whether or not they are married. Of course the permanent denial of sex could result in grounds for divorce however this article isn’t about grounds for divorce.                                                                                       
Since moving to Canada, the respondent sexually assaulted his wife at least three to four times a month. She would try to push him away; she pleaded with him and cried. The respondent told her to shut up and not say anything. He forced her to have sex with him by hitting her, pulling her hair, pinching her and forcefully removing her clothes. The sex was painful. She cried out quietly so the children would not hear. She suffered painful bruises to her legs and sides.  Had he done this to a woman who was not his wife, he would have gone to prison for a very long time.

In addition to the sexual assaults, the respondent was physically violent to her and the children.  While there were many instances of physical assaults, two incidents formed the basis of the assault convictions against the wife.  The respondent slapped her in the face; and he hit her with a pair of slippers. One of the children testified that he witnessed the respondent slapping and kicking his mother on several occasions. He also saw bruises on his mother as a result of such attacks.  

The respondent also abused his two children. He would slap them, kick them, punch them, and hit them with a belt. On one occasion he locked them outside on a snowy winter day while they were wearing nothing but shorts and T-shirts.  They waited barefoot for 40 minutes until their mother arrived home.   

One night in the spring of 2012, the respondent started to hit the children in the face and body and kick them on the legs. Their mother tried to protect the children by standing between them and the respondent. The respondent pushed her away and told her it was none of her business. The respondent left the home that night, and by June 2012 had moved in with a woman he had been secretly dating since February of that year. This woman would later become (and remains) his common-law spouse.

The abuse did not end when the respondent left the home.  On one occasion when he returned to the home to collect mail, he threatened to kill the boys because they had told their mother about his new relationship. The younger boy became so terrified that he took to sleeping with a knife.

The police would likely never have become involved with the family had the younger son not confided in a teacher at his school. In October 2012, he told a teacher who called the principal who in turn informed the police. The police interviewed the respondent’s wife and charges were filed against the respondent.  She testified that she probably would not have gone to the police on her own because she felt extreme shame.  Also, she was not aware that help was available. She testified that in her country of origin no one would help because the respondent’s conduct was considered normal.

The respondent was tried in the City of Newmarket in Ontario by Judge William Gorewhich and convicted of one count of sexual assault for the many instances of forced intercourse, and four counts of assault – two counts with respect to his wife and two with respect to the children. Although the convictions were limited to the incidents alleged in the indictment, the sentencing judge accepted that there had been a pattern of domestic violence which reflected “longstanding and ongoing” abuse.

The Crown sought a penitentiary term of four years. The respondent’s lawyer sought one year of incarceration with up to 18-24 months’ probation.

 The wife and the two children indicated in their victim impact statements that they hoped the respondent would get counselling for his “anger issues” and become a better person.  They did not want him to go to jail. The sentencing judge found that the younger son, who testified as a Crown witness, loved and was loyal to both parents.  During the trial, the younger son said: “My dad did bad things to me but he is still my dad.”  

 In her victim impact statement, the wife expressed surprise that there were potentially serious consequences to the respondent’s conduct. The sentencing judge said that this suggests a significant cultural gap between what is not accepted in this country, and what is accepted in her native country.

I will add my own observation about Iran by simply saying that I have always thought of it as a backward country.

The sentencing judge referred to the aggravating factors of domestic violence against his wife and two young children and breach of trust.  

Then the judge referred to mitigating circumstances that were in the respondence’s  favor.

He had no previous criminal record. There were no physical injuries to the respondent’s wife or the children that required medical treatment.  Regarding the sexual assault against his wife, there was no physical injury requiring medical treatment. The respondent was a hardworking person who provided for his family and he was active in his church.

As I see it, the judge either didn’t appreciate the emotional injuries the family suffered from or alternatively, he didn’t care.

The judge also said the respondent’s behavior was not predatory in nature and there wasn’t any threat of any future sexual deviant behaviour and for these reasons, he is not at risk to re-offend.

What planet did this judge come from? The respondent had sexually attacked his wife for years while in a country (Iran) that turned a blind eye to such attacks on wives and he continued to do it in Canada. How then does this judge make the presumption that such conduct is not predatory? If this man had done it to other women who were not married to him, it certainly would be predatory.

As to the possibility of future sexual behavior, how did he arrive at the proposition that there was no possibility of risk to other women?  Can a leopard change its spots? Sexually assaulting wives in Iran is ingrained with men in that country. The fact that he continued to do it Canada is clear evidence that he is a risk to women. This doesn’t mean he won’t change however.  

The sentencing judge then turned to the issue of culture by saying the following:

“How much weight should the cultural impact of moving from Iran to Canada be given to the respondent? His wife testified that in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence, those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.” unquote

The judge arrived at a sentence of eighteen months in the reformatory (provincial prison) plus probation. He sentenced the respondent to 18 months on the sexual assault conviction, 30 days for the assault on the wife with the slipper, and four months for “the balance of the assaults”, apparently referring to the other assault on the wife and the assaults on each of the children.  The sentences for all the assaults were to be served concurrently with the sentence for the sexual assault.

The respondent was released on parole after completing six months (one third) of his prison sentence as is the practice in Canada. He was still living with his common-law spouse, taking care of his two sons, and running his own carpentry business. His two sons lived with him with the approval of his former wife and his parole officer. He also attended counselling on the referral of his parole officer.

The Crown (prosecution) sought leave to appeal the sentence on the basis that it was manifestly unfit.  The Crown submitted that the sentencing judge erred in several ways, most significantly, by considering the allegedly different attitudes toward domestic violence in Iran and Canada.

The issues are: 1. Did the sentencing judge err? 2. Was the sentence demonstratively unfit and if so, what is the appropriate sentence?  3. Should the respondent be re-incarcerated?

The errors disclosed by the sentencing judge’s reasons were grouped into four categories: 1. The cultural considerations; 2. His finding that there were “no injuries”; 3. His conclusion that the there was no risk of re-offending; and 4. His imposition of concurrent sentences instead of consecutive sentences.

Cultural Considerations

The respondent did not rely on cultural issues to justify or explain his behaviour. That is because he didn’t testify at his trial. And yet, twice in his reasons, the trial judge referred to cultural issues. Further, the Respondent’s defence as stated by his lawyer was a denial that the events the Respondent was accused of doing actually took place. 

The first reference to a “significant cultural gap” was the trial judge’s explanation for the wife’s surprise at the sanctions for domestic violence. The second reference was to the “cultural impact” of moving from Iran to Canada. The sentencing judge said this was a “factor” in his deliberations, but “not a sentencing principle.” He stated: “As far as I’m able to ascertain from the evidence those culture differences moved with them from Iran to Canada.” 

I don’t doubt that the culture in Iran remained in both the respondent’s mind and that of his wife when they moved to Canada but just because he could beat is wife and children and rape his wife in Iran and get away with it doesn’t mean that he could do these vile things in Canada and expect to get away with it.   

The trial judge’s reasons indicate that he considered the cultural impact in his determination of the appropriate sentence. Although his reasons are unclear, it appears as though he considered culture as a mitigating factor. This is an error for two reasons.  The respondent never took the position that cultural differences impacted his conduct.  On the contrary, in the pre-sentence report he expressly disavowed any suggestion that he felt culturally justified in assaulting his wife and children. The respondent’s lawyer’s factum in the Court of Appeal took the same position.  Further, and more importantly, cultural norms that condone or tolerate conduct contrary to Canadian criminal law cannot be considered as a mitigating factor on sentencing.

The law of Canada applies equally to all who are in Canada regardless of the length of time they have resided here either as permanent residents or immigrants.  To suggest that it might be acceptable to beat one’s wife and rape her elsewhere does not mitigate the seriousness of the offence and is contrary to the purpose of domestic violence laws in Canada.\

Even if there were before the court a more articulated submission based on social attitudes within a particular ethnic or religious community to which the Respondent belongs, the courts of the Province of Ontario and Canada have to be alert to the risk of moderating a sentencing policy because of cultural differences in such a case since to do so would mean that some women in Canadian society would be afforded less protection than others.

A cultural practice that is criminal in Canada does not mitigate the perpetrator’s conduct for sentencing purposes. Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value.  It would also create a second class of person in our society—those who fall victim to offenders who import such practices. This is of particular significance in the context of domestic violence. All women in Canada are entitled to the same level of protection from abusers.

The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence.  If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.

No Injuries

At least four times in his reasons the trial judge said that there were “no injuries” as a result of the assaults and the sexual assault. This is a misapprehension of the evidence. The wife was bruised by the abuse, sexual and otherwise. The children were slapped, kicked and hit with a belt. The sentencing judge commented that medical attention was not sought.  This does not mean there were no physical injuries.

No risk to reoffend

The trial judge made an explicit finding that the respondent was at no risk to reoffend and the judge made an implicit finding that as a consequence,  specific deterrence was not an issue.

The record does not support such a finding. The material before the trial judge demonstrated that the respondent was sorry only for the situation that he found himself in.  He put the blame on his wife and assumed no responsibility. The pre-sentence report stated:  The subject denies guilt for the current matter before the Court and defers blame for his negative contact with the Criminal Justice System to his ex-spouse who is a victim of the current offences.”

It is a common practice for the most part that if a parole board is hearing an application for parole and the applicant had denied that he did any wrongdoing, the parole board presumes that he will re-offend again.

The trial judge said about the pre-sentence report; “It is a positive report, except (the respondent] does not accept responsibility. A court will look at lack of insight in considering sentence. Having said that, I do note at page four of the pre-sentence report that he expresses shame regarding his current circumstances with the justice system. He acknowledged his offences as dishonourable in nature.”  unquote

However, a fair reading of the pre-sentence report indicates that the shame he felt did not arise from remorse with respect to his assaults on his children and the assaults and rape of his wife, but rather from the predicament he found himself in as a result of the police investigation into his family life.  

The Court of Appeal said in part; “The subject has not accepted responsibility for his behaviour as evidenced through his denial of the offences and designating his ex-spouse as the cause of his negative contact with the Criminal Justice System. This may limit a meaningful response to any relevant community based counselling programs.” unquote

The letter from a therapist, also before the trial judge, was based on self-reports from the respondent. The letter made it clear that the respondent was upset for himself. There was no indication of remorse. He continued to declare his innocence.

 The trial judge (the fool that he was) chose to ignore these facts and instead he chose to describe the respondent as “a hardworking person” and one who “is a law-abiding citizen, except for the matters before the court.

The Court of Appeals said, “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? There is none, except perhaps for the evidence of his common-law partner in the pre-sentence report that the offences were “out of character”. The respondent, in his late forties, was found guilty of routinely raping his wife over a many years, and of physically attacking his own children. These offences were not isolated incidents.  By nearly all accounts, the respondent had difficulty controlling his anger. This engages an inference that the respondent is a risk to re-offend.” unquote 

W]here there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence and that is because assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.

Concurrent Sentences

As stated earlier in this article, the trial judge imposed a low sentence. He imposed sentences for the assaults against the children and made them concurrent to the sexual assault and assault against their mother. The assaults on the children were distinct from the assault and rapes of their mother. In light of the low sentence, the sentences for the children’s assaults should have been consecutive with the one for the respondent’s wife and not concurrent.

The Appeal Court ruled; “The sentence of 18 months is manifestly unfit.  This court holds that the sentence range for cases involving forced intercourse with a spouse is 21 months to 4 years. The cases at the lower end of the range involve single events. Although the respondent had no criminal record, he did not benefit from any mitigation in sentence for remorse, since he has expressed none.”

The judge in the Court of Appeal that wrote the decision that was agreed by the other two judges sitting on that panel said;

“Under these circumstances, I would impose a sentence of 44 months for the sexual assault. I would not alter the sentences on the common assaults except as follows: (i) the term for the assaults on the wife would be concurrent to the sexual assault sentence, and (ii) the four months on the assault convictions on the children would be consecutive to the sexual assault.  This would result in a sentence of four years. The probation term will be deleted.” unquote

He was re-arrested and sent to a federal penitentiary to serve his sentence. Now it is conceivable that he could be released after serving a third of his time. He will in any case, if not released then, be released after serving two thirds of his time as mandated by law in Canada.

If he is not a Canadian citizen, it is also conceivable that he will be deported back to Iran. I have no idea where the children are living and with who.  

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