Canadian Supreme Court justice says use of ‘woman’ to describe rape victim in lower court ruling was ‘unfortunate,’ calls her ‘person with a vagina’

According to the National Post, Justice Sheilah Martin wrote that the use of the word "woman" by a trial judge may "have been unfortunate and engendered confusion."

The ruling came in the case of R v Kruk, which involved a 2017 charge of sexual assault against then-34-year-old Charles Kruk of British Columbia, Canada.

"Mr. Kruk was charged with one count of sexual assault from an incident at his home in the early hours of May 27, 2017. Earlier that evening, he came upon the heavily intoxicated complainant on the street. The complainant testified that she woke up in Mr. Kruk’s bed with her pants off, Mr. Kruk on top of her, and his penis inside her vagina," the ruling states of the case.

"Mr. Kruk testified that he took care of the complainant throughout the evening and intended to drive her to her home in the morning. He denied any sexual touching of the complainant and said the complainant removed her own pants while intoxicated. He proposed that the complainant woke up, still intoxicated, found her pants were off, and assumed the worst."

A trial judge in 2020 rejected Kruk’s defense, stating that the complainant, a woman, was unlikely to mistake the feeling 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,” the initial decision stated.

The case made its way to the Supreme Court after a Court of Appeals decision overturned the conviction in the case on the grounds that it was "speculative reasoning" to assume that a woman would immediately know the feeling of being penetrated.

Overall, Martin wrote that "There was therefore no basis for the Court of Appeal to intervene," and the conviction should be restored.

"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," Martin wrote.

"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.

"In other words, the judge’s conclusion was grounded in his assessment of the complainant’s testimony. The Court of Appeal erred in finding otherwise."