Canadian Supreme Court Rules The Word ‘Woman’ Is ‘Confusing’ In Deciding A Rape Case

The following report is by National Post. The report contains sexual explicit content, so viewer discretion is advised:

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.”

In a decision published Friday, Justice Sheilah Martin wrote that a trial judge’s use of the word “a woman” may “have been unfortunate and engendered confusion.”

Martin does not specify why the word “woman” is confusing, but the next passage in her decision refers to the complainant as a “person with a vagina.” Notably, not one person in the entire case is identified as transgender, and the complainant is referred to throughout as a “she.”

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.

Viewed as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather because he accepted the complainant’s testimony that she was not mistaken.

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).

https://twitter.com/SCC_eng/status/1766811261977694475

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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AUTHOR COMMENTARY

Don’t feel too bad, my Canadian brethren, we got a Supreme Court Justice of our own that openly says she can’t define what a woman is either.

We lie down in our shame, and our confusion covereth us: for we have sinned against the LORD our God, we and our fathers, from our youth even unto this day, and have not obeyed the voice of the LORD our God.

Jeremiah 3:25

There is no judgment and justice anymore, and truth has fallen dead in the streets. Evil is now good, and good is evil, black is white, the sun is the moon, and men and women are just “confusing” constructs that have no meaning.

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[7] Who goeth a warfare any time at his own charges? who planteth a vineyard, and eateth not of the fruit thereof? or who feedeth a flock, and eateth not of the milk of the flock? [8] Say I these things as a man? or saith not the law the same also? [9] For it is written in the law of Moses, Thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God take care for oxen? [10] Or saith he it altogether for our sakes? For our sakes, no doubt, this is written: that he that ploweth should plow in hope; and that he that thresheth in hope should be partaker of his hope. (1 Corinthians 9:7-10).

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