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A decision in a sexual assault case implied that the complainant should be properly known as a ‘person with a vagina’
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The Supreme Court of Canada ruled in a recent sexual assault case that it was “problematic” for a lower court judge to refer to the alleged victim as a “woman,” implying that the more appropriate term should have been “person with a vagina.”
The case was R. v. Kruk, which involved a 2017 charge of sexual assault against then 34-year-old Maple Ridge, B.C., man Charles Kruk.
“Mr. Kruk found the complainant intoxicated, lost, and distressed one night in downtown Vancouver,” reads the background to the case. “He decided to take her to his house, and connected with the complainant’s parents by phone.”
It’s then that the accounts diverge. The complainant testified that she woke up to find that her pants were off, and Kruk was vaginally penetrating her. Kruk testified that the complainant’s pants were off because she’d removed them herself after spilling water on them earlier in the night – and that what she assumed was a rape was actually just Kruk startling her awake.
At trial in 2020, a B.C. judge rejected Kruk’s defence in part on the grounds that the complainant was not likely to be mistaken about the sensation of vaginal penetration.
“She said she felt his penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling,” read the initial decision.
It was this line that drew Martin’s approbation, and the seeming implication that the passage should more appropriately have been “it is extremely unlikely that a person with a vagina would be mistaken about that feeling.”
Although Martin never specifies what she finds objectionable about the term “a woman,” one possible interpretation is that she took issue with the generalization. In other words, that the trial judge confusingly seemed to be saying that “all women” would correctly interpret the feeling of vaginal penetration.
“In my respectful view, this statement (a woman) was merely a reflection of the trial judge’s reasoning as opposed to reliance on an improper generalization,” she wrote.
Nevertheless, Martin’s use of the term “person with a vagina” appears only in the paragraph denouncing the phrase “a woman” as “unfortunate.” In fact, this decision may well be the first time that the phrase “person with a vagina” has ever appeared in a Canadian judicial decision. A search of the term on a database maintained by the Canadian Legal Information Institute yields only Martin’s decision on R. v. Kruk.
R v. Kruk had made its way to the Supreme Court because of a prior Court of Appeal decision that had overturned the initial ruling on the grounds that it was “speculative reasoning” to assume that a woman would immediately know the feeling of being penetrated.
“He (the trial judge) made an assumption on a matter that was not so well known as to be notorious,” reads a Court of Appeals ruling overturning the original conviction (the word “notorious,” in this instance, is a legal term referring to a matter so obvious that it doesn’t need to be proved).
Martin’s decision would reject the Court of Appeals’ ruling and restore the original conviction.
“While the choice of the trial judge to use the words ‘a woman’ may have been unfortunate and engendered confusion … the judge’s conclusion was grounded in his assessment of the complainant’s testimony,” she wrote.
Perhaps ironically, a decision that casually dismissed the word “woman” as being confusing was touted as a test case for the principle of judges employing “common-sense assumptions.”
“It is a necessary part of judicial reasoning to assess evidence in relation to a benchmark of what might be ordinarily expected,” wrote Martin in dismissing the Court of Appeals ruling. “I conclude that it is a reasonable generalized expectation that a woman is unlikely to be mistaken about the feeling of vaginal penetration.”
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