A Supreme Court of Canada justice said in a recent decision that a trial judge’s use of the wording “a woman” in a sexual assault case was “unfortunate.” In the same paragraph, the justice uses the term “person with a vagina.”
While the justice was not saying courts should start referring to women as “people with vaginas,” it seemed that way to some, and sparked a wave of social media commentary and media articles.
How a top judge defines the word “woman” has been a contentious issue ever since U.S. Supreme Court candidate Judge Ketanji Brown Jackson famously said in 2022 she couldn’t define the word “woman.” She added, “I’m not a biologist.”
Questions Around Reporting an Assault
The case in issue was a sexual assault case against Christopher James Kruk of British Columbia. Mr. Kruk’s defence argued that the alleged victim was intoxicated and confused, leading her to make the mistaken assertion that Mr. Kruk had penetrated her body.The trial judge said “her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling.”
The defence called the judge’s statement an “ungrounded common-sense assumption.” A B.C. Court of Appeal agreed “that the trial judges erred in law by making assumptions about human behaviour not grounded in the evidence,” according to court documents.
This is the first time the Supreme Court has been called upon to assess this new, proposed rule of dismissing “ungrounded common-sense assumptions” that aren’t supported with submitted evidence.
The Supreme Court dismissed this new rule. Justice Martin said other existing laws already protect the defendant against a judge’s potentially incorrect assumptions and a new rule is not needed.
So, it is in this context that Justice Martin wrote the paragraph that caused confusion about her opinion on using the word “woman.”
“Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken. While the choice of the trial judge to use the words ‘a woman’ may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penile‑vaginal penetration because people generally, even if intoxicated, are not mistaken about that sensation.”
Justice Martin is saying the trial judge assessed the reliability of this particular woman’s account. She was not saying that every woman in every instance would similarly be able to report accurately on the situation.
Given the close proximity of Justice Martin’s phrasing “person with a vagina” and her questioning the wording of “a woman,” confusion ensued about her meaning. This is the only instance of Justice Martin using the phrase “person with a vagina” in the decision. The word “woman” is used in all other instances.
Implications for Future Assault Cases
The decision related not only to Mr. Kruk’s case, but also a separate sexual assault case against Edward Tsang. In Mr. Tsang’s case, the B.C. Court of Appeal had similarly overturned a trial judge’s conviction based on the “ungrounded common-sense assumption” rule.Mr. Tsang’s defence argued in that case that the trial judge made assumptions about human sexual and social behaviour not grounded in the evidence.
The Supreme Court also restored the trial judge’s conviction of Mr. Tsang and again found no error in the trial judge’s assessment of witness reliability.
A criticism of the common-sense assumption rule has been that it could negatively impact sexual assault victims.
Justice Martin said the developing body of jurisprudence around the rule has been “volatile.” It has being used at the appellate level to raise questions about credibility and reliability in sexual assault cases.
The proposed rule, if it were accepted, could lead to “potentially absurd consequences,” said Justice Martin.
She suggested expert testimony on neurology or physiology might be required to determine whether “an intoxicated witness was certain they were physically assaulted in some other way, such as a punch to the face or a kick to the shins.”
The Supreme Court rejected the idea that a breach of the proposed “rule against ungrounded common-sense assumptions” would be an error of law and a basis for appeal.
