January 23, 2012
A young academic has been sentenced to four months in jail for sexually assaulting his wife during rough sex despite his claim that, in their dominant-submissive sexual role playing, “no” frequently meant “yes.”
The 33-year-old man, who cannot be identified to protect the anonymity of his now ex-wife, made the fatal error in being “willfully blind or not seeking clarification” as to whether she was playing a role or she truly did not want intercourse, Ontario Superior Court Justice Michael Quigley said Monday.
“The onus was on him to ascertain whether ‘no’ did, in fact, mean ‘no,’” Quigley said.
A York University student at the time of the sexual assault four years ago, the man admitted during his trial in March that his wife said “no” when he grabbed her and forced himself upon her in their bedroom. He grabbed her hair, put his arm over her throat, and pinned her down, saying “You want it, don’t you? You know you do.”
The man insisted he believed her ‘no’ actually meant ‘yes,’ since she spoke in her modulated role-playing submissive voice and her body language had been encouraging.
But the judge ruled last May this was a “convenient fabrication” and found the man guilty of sexual assault.
The ex-husband testified that if she had wanted him to stop she should have used their safe word – “cabbage” – signaling that aggressive role playing should immediately end.
But in her testimony, the former wife denied the existence of the safe word.
She testified that although there was some harmless, dominant-submissive role playing in their eight-year marriage – initiated by him – she adamantly denied she ever agreed to violent or aggressive sex.
She said the intercourse they had on Feb. 8, 2008, was a brutal and non-consensual rape, during which he ignored her sobbing and cries of “no.”
The ex-husband claimed she delayed reporting her rape allegations until eight months later in the context of a family law dispute involving their two children.
The woman testified he had a very bad temper and during their marriage increasingly tried to control her movements, forcing her to effectively become invisible.
He demanded constant quiet when he was studying, notwithstanding the presence of their young children, she said. The couple would often communicate by text message at home, even when sitting near each other.
Crown prosecutor Anna Stanford called for a sentence of three years in jail, saying the assault involved a breach of trust between a husband and wife.
Defence counsel Iryna Revutsky asked for a suspended sentence or, failing that, a 90-day term to be served on weekends, plus three years probation.
Revutsky said her client has paid a very high price already, because as an academic he will be barred from the United States and perhaps other foreign countries, curbing his ability to teach or attend conferences internationally.
The judge noted he has no criminal record, is very unlikely to reoffend, and has the support of family, friends and colleagues, 30 of whom wrote letters in his favour and several of whom were in court Monday.
In the unusual circumstances of this case, it would be “crushing” to sentence him to three years, Quigley said. But on the other hand, the suspended sentence requested by the defence would be “totally unacceptable,” given this is a serious personal injury offence, the judge added.
The judge ordered that, in addition to four months in jail, the man serve three years of probation and continue be treated by a forensic psychiatrist.