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Sexual assault

Consent and the conjugal bed

Spousal sexual assault has been illegal in Canada for 34 years, but an Ottawa judge seems to have ignored that in a recent ruling. Zosia Bielski reports on one of the least understood but most intimate forms of violation

To avoid the bed she shared with her partner of 20 years, Irene Nightingale would sleep on the floor, often with her jeans on.

Nightingale, 57, had grown petrified in a relationship marred by physical and sexual assault. She says her common-law ex became abusive two years into their time together, especially when they argued about him being unfaithful. Once, Nightingale says he gripped her by her French braid and threw her six feet into the kitchen stove. Another time, she was woken from sleep by pain. Her partner was raping her, continuing despite her pleas to stop.

"I was his possession, not a woman any more. I was this thing he had, not his partner," said Nightingale, a former Toronto business owner.

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Despite the brutal assaults, for a long time, Nightingale couldn't bring herself to leave a man who had once showered her with affection and visited her ailing mother in hospital. As the years of abuse stretched on, family and friends questioned where her self-worth had gone to. Eventually, they gave up on her. Nightingale was running on survival mode: Intensely afraid of being attacked again, she'd become hypervigilant trying to please her ex.

"I was so engulfed in him that I couldn't walk away," Nightingale said. "Deep down inside, you know it's wrong. But some women can't find the words to say, 'I just got raped,' 'I just got violated,' because the emotions take over. I loved him."

Spousal sexual assault remains a deeply misunderstood form of domestic violence. Until fairly recently in Canada, rape was treated as an offence that happened outside the confines of marriage, against women who were not perpetrators' wives. That changed in 1983, when sexual assault against one's spouse became a crime.

Despite the decades' old law, marital rape myths endure. A controversial ruling out of Ottawa last month shows the issue is as relevant today as it was in 1983.

Even as he stated that "marriage is not a shield for sexual assault," Ontario Superior Court Justice Robert Smith acquitted a husband of raping his wife.

The spouses, who wed in an arranged marriage in Gaza, mistakenly believed that a husband has the right to have sex with his partner whenever he wants. The wife testified that she didn't actually consent throughout their 21-year-long marriage: The sex was obligatory and, on one occasion in 2002, especially violent, she alleged.

In his ruling, Smith wrote that "the accused probably had sex with his wife on many occasions without her specific consent." But he decided the husband lacked intent to harm, noting that the wife "continued to have sex with the accused from the time of the alleged incident in 2002 until January 1, 2013 a period of approximately 11 years."

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Deep misconceptions endure around the complex realities of spousal sexual assault, intimate attacks where perpetrators and victims live together, often with children. Doubts linger around the credibility of women alleging marital rape: Is a wife believable if she has consensual sex with her husband on a separate occasion later on? Do people tacitly consent to sex for the entirety of their marriages after slipping on their wedding bands?

Such antiquated thinking persists even though Canada's Criminal Code is clear: Consent is defined as voluntary, affirmative and ongoing throughout the sexual activity in question. In other words, you can't determine that consent existed one night by deciding that consent existed on other nights before or after.

"It's very concerning to have some sort of throwback to an era when women are essentially chattel in marriage," said Kim Stanton, legal director at the Women's Legal Education and Action Fund (LEAF). Stanton criticized the Ottawa ruling for its lack of reference to the 1983 law that criminalized marital rape in Canada.

Three decades on, false ideas remain about wives being in a "perpetual state of consent," Stanton argued. "It's an area of law that people really don't have a good understanding of – judges included, unfortunately."

Earlier this week, a small group of protesters gathered at the provincial Ottawa courthouse to condemn Smith's decision. The sense was that marital rape had been treated as a lower-tier crime, even as it sees women violated in their most intimate relationships. The attorney-general's office is currently deciding whether or not to appeal the case.

Alice Dean, left, and Ruth Greer demonstrate against rape culture in front of an Ontario courthouse.

At the same time, Parliament is debating legislation that would require mandatory training in sexual-assault law for candidates for the federal bench. Whether that would help the average Canadian is questionable: A 2015 survey from the Canadian Women's Foundation found disconcerting ignorance around marriage and sexual consent. The online poll of 1,500 people found that while 97 per cent understood that new partners or casual dates need to secure consent before having sex, one in 10 wasn't sure or didn't think that spouses or long-term committed partners needed to get consent.

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What goes on in marriages and in longer-term, committed relationships often gets ignored, argues Paulette Senior, president and chief executive officer of the Canadian Women's Foundation – currently, most of the focus goes to raising awareness about sexual assault on college and university campuses. "Sometimes when things like this happen," Senior said of the Ottawa ruling, "it tells us what gap we need to narrow in on."

Marital rape occurs far more frequently than people assume, said Nneka MacGregor, executive director at WomenatthecentrE, a Toronto organization for survivors of gender-based violence.

"It is such a hidden, dirty cave that the perpetrator wants his abuses to remain in," MacGregor said. "When a woman comes forward and says, 'My husband rapes me' and the justice system responds in this way, it pushes more women further back."

Stigma exists for all victims of sexual violence, but survivors of marital rape experience a particular sting of shame: They've wed the perpetrator, live under the same roof and perhaps share a mortgage or children. This renders many of them silent.

"You have now publicly committed to each other. There's a lot of societal expectation of the relationships," said Deepa Mattoo, director of legal services at Toronto's Barbra Schlifer Commemorative Clinic, an organization for women facing violence. Mattoo says some sexually abusive spouses do it for years, while others have a "phase." Some have substance-abuse issues and others are staring down a life crisis such as job loss. "None of this is an excuse," she says.

Marital sexual violence crosses cultural and economic lines: Witness the divorce deposition of Ivana Trump, who alleged that her ex-husband Donald Trump viciously raped her in 1989. (He denied the allegations.) On the other end of the spectrum, newcomers who are dependent on their abusive spouses for their livelihood and immigration sponsorship find reporting rape is even harder. These wives tend to put sexual-assault charges last, prioritizing their safety, child custody and spousal support first, Mattoo said.

Women in forced marriages who are isolated in the home with no language skills and no job prospects are especially vulnerable, according to Kripa Sekhar, executive director of Toronto's South Asian Women's Centre. "Marriage appears to give a man permission to use his spouse's body as he pleases," Sekhar said. "A woman's life is in many ways not her own."

In 2016, her organization released a report on marital rape which found that female sexual autonomy was a distant notion for many of the women interviewed. Sex existed as a duty, with women reporting they'd "unwillingly [offered] sexual favours to ensure their husband's happiness." The report continued, "Women are not aware that their intrinsic rights are being violated and that the law is on their side."

At the Centre, staff counsel women about consent law and their right to say no. The response is often disheartening: "Many of them say, 'We dare not do that,'" Sekhar observed. Women fear their husbands will divorce them or abuse them more violently. More widely, there remains a code of silence around the word "rape."

The majority of the sexual-assault victims at the Centre return to their husbands. The few who file for divorce typically wait until their children are grown and out of the home. "We've gotten across to a small percentage," Sekhar said. "It's going to take time."

For Nightingale, the violence ended when her abuser left her in 2015. "It took me about three months to enjoy going to sleep at night," she said. Attending group counselling, she realized her kind of story was everywhere, an "epidemic." She now speaks with young women and front-line workers about intimate-partner violence.

"I feel empowered," Nightingale laughs, "and I'm not kidding you."

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