Evidence in sexual case showed wife controlled husband and he 'acquiesced passively'
An Ontario Superior Court of Justice judge has dismissed charges of sexual assault laid against a husband by his wife, ruling that her description of him as being controlling was incongruent in the face of evidence that showed him as having a “passive apologetic personality.”
In dismissing the charges, Judge Alfred J. O’Marra accepted the evidence of a forensic psychiatrist that portrayed “FZ” as having the characteristics of a person with “complex trauma – a hypervigilant, passive, and apologetic person who sought to please [his former wife] to avoid her anger, which appeared easily triggered.”
Judge O’Marra also wrote that he found the wife WLM’s description of FZ as being a “controlling and entitled person” to have been “disingenuous and incongruent in the face of the numerous texts which displayed his passive apologetic personality, a person who was trying continuously to avoid conflict.”
FZ was charged with two counts of sexual assault alleged to have been committed against WLM on Jan. 5, 2019, and June 6, 2020. After she separated from FZ in December 2020, she went to the police to report her allegations.
“What’s so profound and important about the case is that it’s important to understand that abuse – whether abuser or victim – applies to both genders,” says lawyer Joseph Neuberger, who represented FZ. He adds that it’s unfortunate when complaints are made that turn out to be exaggerated because “it does a disservice to all true victims.”
Neuberger says having an expert witness provide evidence was crucial to his client’s defence. “As far as I could tell, in doing research, there were no reported decisions that I could rely upon for anything similar where there was expert evidence called,” he says. “We thought it would be quite a challenge at the beginning, as we saw our client was fairly traumatized as a result of what happened in the marriage.”
The expert evidence provided a “very robust” foundation to support the other evidence presented, such as text conversations, which have become a key method for younger people to communicate, even about intimate subjects.
Neuberger says his client also needed “targeted therapy” to get to the point where he could “find his voice” and have the confidence to testify. “We had to spend a lot of time with him, just working through the emotions of what had happened in the marriage, the aftermath of the marriage, and then the criminal charges.”
FZ and WLM met in 2016 and married in 2018. FZ worked for a bank, and WLM worked in a shelter for women experiencing domestic violence.
WLM testified that FZ was respectful of her sexual boundaries at first, but after they married, she said he changed, “like something switched,” and he became controlling. FZ testified that he wanted WLM to inform him about anything that made her uncomfortable. He also said he was cautious and vigilant about verbal and non-verbal cues to ensure her consent to the sexual activity.
The two differed on what happened the night of Jan. 6. WLM said FZ “pestered” FZ for sex, while FZ said it was consensual. The second incident, on June 6, revolved around whether FZ had touched her breast when he was trying to be affectionate. He said he touched her stomach while they were in bed and removed it quickly after she objected.
FZ said WLM’s reaction caused him to stop “cuddling or spooning” in the morning, adding that she had turned a nice morning into a horrible experience, affecting how they interacted in the future. It was the last time he touched her affectionately in bed.
WLM, in support of the allegations of rape and sexual assault, produced as evidence text messages from FZ saying he would never force her to do anything she didn’t want to do. However, FZ testified that the text referred to a concern about their household income if WLM commenced a master’s degree program, as she was contemplating, without taking a part-time job.
When he texted that he should never “force” WLM to do anything, he said it was in the context of her contributions to the family finances and not related to being physically forced into sexual intercourse on Jan. 5, 2019. WLM, in cross-examination, acknowledged she could not remember the exact context of the argument or the word that had triggered her anger referred to in the message.
Neuberger says that the text conversations between the couple were vital to determining who was the controlling person in the relationship. “It’s very clear [from the texts] that the complainant’s narrative of our client is false. Because there was so much dialogue in writing between these two, you could see what the true dynamic was. And there was no way he was the controlling, domineering figure she had alleged. In fact, she was the one.”
Judge O’Marra wrote that after considering the evidence, “contrary to WLM’s assertion that FZ tried to control every aspect of her life,” the defence introduced a series of additional chat messages that suggest otherwise. “They show that she controlled his activities, and he acquiesced passively.”
For instance, living in a small one-bedroom condo, WLM had a rule that FZ was required to leave the condo when she had internet meetings which she described as “confidential.” If she was using the computer, he was not to interrupt her and to communicate with her only by text messages.
She also set the rules in terms of access to the washroom. “If she was in the washroom, FZ was not to knock on the door or to speak to her through it. At times, when he had to use the washroom, he was required to leave the apartment and go down 26 storeys to the gym in the building to use the facilities there.
FZ was required to report his daily activities by text to her. He was required to communicate with her if he was going to use the last item of something in the refrigerator. In one instance, he texted as to whether she wished to split the last egg with him. He sought her approval to buy an expensive Japanese whiskey.
Another time, WLM informed him by text that she had donated some of his clothing and that several of his t-shirts would be cut up for a charity project.
In many texts, FZ apologized for having said or done something. Neuberger says that is one reason a psychiatrist providing expert evidence was necessary. “A lot of time, there is still a belief that when there are apologies, that is somehow an admission of guilt.
“The nature of the evidence called for more understanding as to the psychological makeup of our client and why he was so passive and constantly apologizing.
“The court ultimately accepted that his psychological makeup and disposition was one that was very passive and cautious about how he approached the complainant for consent, which was the direct opposite to the narrative of what the complainant was saying.”
In one instance, FZ had been communicating with his parents in China over the Internet. He was using earphones. WLM entered the room and overheard him say her name. She wanted to know what he told his parents about her. Initially, he said they had not been talking about her, and then he said they had been talking about buying her a gift as a surprise. FZ testified that WLM became extremely angry with him because, in her view, what he had told her initially was a lie. As a result, she kicked him out of the apartment.
FZ had been banished from the apartment for approximately one week for this. On his return to the apartment, he slept on the couch. FZ continued to report daily activities and to provide appointments in their shared calendars. WLM agreed in cross-examination that FZ often failed to input matters into the calendar and that she would get angry at him for not doing so.
Another incident involved WLM’s anger with FZ because he swapped their key fobs when he delivered food to her brother, who resided in another building. She testified that her anger was justified, as without the fob, she felt trapped in the apartment even though FZ’s own keys, which he had left, gave her access to the condo unit.
FZ testified he came to believe the problems in their marriage were due to his lack of intelligence or poor English skills and comments by WLM about his being of low class due to his birth in mainland China, whereas her family was Hong Kong Chinese. FM went to see a therapist. The therapist recommended couples counselling, but WLM declined.
From his perspective, the marriage was like “walking on eggshells,” trying to avoid triggering her wrath.
WLM left the condominium and the marriage on Dec. 7, 2020, when she removed her possessions. She also took several important documents belonging to FZ, such as his immigration-related documents, permanent residency permit and citizenship certificate, tax documentation and his framed degree from the University of Toronto.
Dr. Julien Gojer, a forensic psychiatrist, gave expert evidence that he believed FZ exhibited “complex trauma” and suffered from depression and anxiety.
Judge O’Marra wrote that Goger testified that the impact of complex trauma “can cause a person to become passive and compliant while internalizing fault.” The person could also exhibit hypervigilance, feeling “like walking on eggshells,” and the need to avoid conflict in a relationship and to become overly apologetic.
In reference to the text messages between WLM and FZ, Gojer noted FZ engaged in placating behaviour despite the harsh responses he received from WLM, “exchanges consistent with what he would expect to see from a person being subject to domestic violence or battered person syndrome.”
He observed that FZ exhibited a pattern of behaviours, such as being passive, avoiding conflict, exhibiting “learned helplessness,” being apologetic and engaging in self-blame without displaying an ability to challenge the perpetrator.
In assessing the credibility of WLM’s testimony, Judge O’Marra wrote: “There are a number of areas in which I found [her] evidence to have been disingenuous attempts to mislead the court that affect her credibility.
“I do not accept that there was a sudden personality change like something switched’ as suggested by WLM, "but then him reverting to being passive and acquiescent as reflected in the text messages and his psychological profile relied on by the defence.”
As well, when WLM produced for the police two text exchanges with FZ to corroborate her allegations, the first claiming to have been part of an argument about the alleged assault in December 2019. “However, in cross-examination, she could not recall what the specific argument had been about or the word that triggered her anger.”