The Supreme Court of Canada found in a recent sexual assault case that it was ‘problematic’ for a lower court judge to refer to the victim as a ‘woman,’ hinting that a more appropriate term would have been ‘person with a vagina.’ In a ruling issued Friday, March 8, Justice Sheilah Martin said that a trial judge’s use of the term ‘a woman’ may ‘have been unfortunate and engendered confusion.’
Martin meanwhile failed to explain why the term ‘woman’ remained ambiguous, yet the paragraph in her judgment referred to the complainant as a ‘person with a vagina.’ Notably, no one in the entire case had been described as transgender, and the complainant was always referred to as a ‘she.’
The case before the Canadian Supreme Court centred around Charles Kruk, who was accused of sexual assault against Maple Ridge, 34, in 2017.
“Kruk found the complainant intoxicated, lost, and distressed one night in downtown Vancouver,” read the case’s history. “He decided to take her to his house, and connected with the complainant’s parents by phone.”
The complainant stated that she awoke to find her pants off and Kruk vaginally penetrating her. Kruk testified that the complainant’s trousers were off because she had removed them herself after spilling water on them earlier in the night and that what she perceived to be a rape was Kruk startled her awake.
At Kruk’s 2020 trial, a British Columbia court rejected his defence in part because the complainant was unlikely 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.
Martin approved of this sentence, with the hint that the paragraph should have been “It is extremely unlikely that a person with a vagina would be mistaken about that feeling.”
Justice Martin believed that instead of using the word ‘woman,’ the complainant, Ridge, was described as a ‘person with a vagina,’ which could have caused doubt about who the word was referring to.
