Canadian SC Refers Woman Sexual Assault Survivor As Person With Vagina

The Canadian Supreme Court, in a recent ruling, talked about sensitising vocabulary while referring to genders in sexual assault cases. Justice Sheilah Martin opted to use "person with a vagina" to refer to a sexual assault survivor instead of "woman." The judge criticised the lower court for creating confusion by using the word "woman" to refer to the survivor. 

The court was hearing a sexual assault case in 2017 when 34-year-old Charles Kruk of Maple Ridge, B.C., was accused of sexually abusing the complainant. As per the case , Kruk found the complainant "intoxicated, lost, and distressed one night in downtown Vancouver.". So he decided to take the complainant to his home and connect with her parents over the phone. 

However, the complainant testified that she woke up with her pants off. She also said that she was vaginally penetrated by Kruk. But Kruk denied the allegations and said that the complainant herself removed her pants after spilling water on them. Moreover, he said that what she assumed to be rape was Kruk's attempt to wake her up.

However, the B.C. judge denied Kruk's plea on the grounds that the complainant cannot be mistaken about her 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 decision of the judge. 

However, Justice Martin said that the sentence would be more appropriate if it mentioned "person with a vagina" rather than "woman." 

Why did the judge refer to the survivor as a 'person with vagina'? 

Justice Martin was of the opinion that instead of referring to the complainant as a woman, she must be called a person with a vagina to avoid confusion about whom the word was actually referring to. 

“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,” Justice Martin wrote in her judgement. In her view, the trial judge created confusion by saying that "all women" would correctly interpret the feeling of vaginal penetration. 

Although, Justice Martin didn't specify why the word 'woman' would create confusion,. Moreover, the complainant was referred to as 'she' in the entire judgment, and there was no one who identified as transgender in the case. 

Why the need to sensitize our vocabulary?

The case makes us look at the changing definitions of a particular gender. After the sensitization towards the LGBTQIA+ community, there has been a heated debate on the use of the right vocabulary when referring to a person. Earlier, gender was only classified using pronouns like he/she. But now, gender identity is not limited to men or women. Pronouns like they/them are now frequently used to refer to people whose gender is not known. 

When it comes to sexual assault cases, it becomes even more important to sensitize our vocabulary while referring to genders. Every gender in our society faces sexual assault.  But if we do not specify the gender of the survivor, we might end up ignoring the power relations and systemised marginalisation of that gender. People who identify themselves as women or transgenders face discrimination on a daily basis. Sexual assault is the result of that marginalisation. If we create confusion over the gender of the survivor, we might not be able to address the elephant in the room. 

For example, women are harassed because they are considered submissive or inferior. Transgenders are harassed because their identity itself is denied. They are not accepted as a relevant identity in society. 

Moreover, sensitization of the vocabulary in sexual assault will help in providing relevant solutions and legal respite to certain genders. We cannot address the issues of different genders under one umbrella-like law. There is a need to identify the issues that different genders face and create different laws that provide relevant solutions to them. 

So as we are marching towards a more accepting society, we also need to broaden our language to accommodate different identities.

Views expressed are the author's own.