|Notes from a small island
A weblog by Jonathan Ali
Monday, December 23, 2002 Kim Johnson in today's Trinidad Guardian takes up the case of Roy Dubay, the man who last week was sentenced to five years for rape, stemming from an incident in which he persuaded a woman that he was a mystic healer and needed to have intercourse with her to rid her of a demon, a case which I posted about.
In his column (entitled "Don Juans beware!") Johnson expresses sympathy for Dubay and argues that the point of law on which Justice Soo Hoon instructed the jury, Dubay's false inducement of the young woman in question to obtain her consent, sets a dangerous precedent:
'Poor Mr Dubay. For his efforts he has been tried for larceny once (without success), and four times for rape. He has spent three years in jail awaiting trial, and now has been given an additional five years by Justice Alice York-Soo Hon.
'On the basis of what? Rape, in the Sexual Offences Act, includes sex obtained by false and fraudulent representations as to the nature of the act.
'Did Mr Dubay misrepresent the nature of the act? I think not.
'Such misrepresentation would be, for example, a claim, made by a gynecologist, that he was conducting an internal examination on his patient with a specially sensitive instrument.
'Justice York-Soo Hon didn’t punish Mr Dubay for pretending that he and his victim weren’t having sex; the judge punished him for the untruths he used to persuade his victim to have sex with him.
'Such a definition of rape must send shivers down the spine of every Don Juan. After all, who hasn’t stretched the truth, or abandoned it completely, when under the thrall of an urgent desire?
'How many scoundrels, while harbouring ulterior — or interior, if you may — motives, have claimed an impending divorce, promised eternal fidelity, and threatened to die of heartbreak if their love wasn’t reciprocated?
'Mr Dubay’s argument had the even more compelling premise that she, not he, would die if she didn’t extend her favours.
'But how different was it from the normal, much frowned upon but perfectly legal lyrics men often perpetrate?'
I have no problem with Johnson batting for cads and lotharios if that is his desire, but on a point of law - and not just because he believes the victim, to use the local phrase, "Look fuh dat" - on a point of law he is mistaken. Johnson claims Dubay did not misrepresent the nature of the act. But this is exactly what he did do. Dubay told the young woman, in essence, that he was having intercourse with her, not for the purpose of obtaining gratification, but to rid her of a demon. In that case, then, the sex is not sex. The woman would not have seen it as sex, even if she "went along" and obliged Dubay. Everything she did, she did out of the (sadly mistaken) belief that Dubay would rid her of this non-existent demon. In fact, as Dubay had told her she would die if she did not have sex with him, she may well have "put more effort" into the act. Dubay's intent was to bring about the desired effect, and he succeeded, and so has rightly paid the price.
What Johnson also fails to take note of is a primary maxim of the legal system: Take your victim as you find him. (Nick probably knows the Latin phrase.) No matter how foolish the young woman was (and she was, very, very foolish) she was in no way intentionally complicit in her own duping. She genuinely believed she was possessed by a demon and that the only way to get rid of it was to have intercourse with the convicted. Madame Justice Soo Hon, the attorneys, the jury, everyone in the court may have believed personally that this woman was a complete idiot to fall for Dubay's ploy, but that doesn't matter. One of the reasons the law exists is to protect people from themselves, no matter how stupid their actions; in fact, it is so designed knowing that humans are capable of engaging in the most unbelievably asinine acts.
I hope the next time Johnson decides to take on such a delicate legal issue, he won't be so cavalier and instead does his homework.
posted by Jonathan | 1:11 PM 0 comments