No, the Supreme Court of Canada does not prefer “person with a vagina” to “woman”

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A recent decision of the Supreme Court of Canada used the expression “person with a vagina” only once. The word “woman” comes up more than sixty times.

• Nicholas De Rosa (View profile)Nicholas De Rosa

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A recent column from the National Post (News window) caused quite a stir in the political world and on social networks by postulating that a judgment (New window) of the Supreme Court of Canada, in a sexual assault case, “implies that the complainant should be designated as a & ;quot;person with a vagina" » and that she considers the use of the term “woman” to be problematic. However, this is not at all what the judgment in question says, in which the word “woman” appears more than sixty times.

The expression person having a vagina is used only once in the entire judgment, and the context in which it is used has nothing to do with the supposed problematic nature of the word woman.

The objective is rather to explain that it is reasonable to believe that a person with a vagina is able to recognize the sensation of penile-vaginal penetration, even when factors like intoxication are taken into account.

This idea is at the heart of the case, because it involves a plaintiff who was awakened by feeling penetration while she was intoxicated. During the trial, the defense considered that it was possible that she was mistaken.

The attacker was convicted in the trial court, the judge having ruled that it was extremely unlikely that a woman would be mistaken about this sensation. This judgment was subsequently overturned by the British Columbia Court of Appeal on the grounds that it was based on an unfounded logical assumption. The Supreme Court of Canada ultimately rejected this conclusion and reinstated the trial judgment.

The rule prohibiting unfounded logical hypotheses are central here.

The dean of the Faculty of Political Science and Law at UQAM, Rachel Chagnon, explains that this serves to ensure that judges do not cannot rely on prejudices or stereotypes when making judgments. In this case, the hypothesis in question – recognized as unfounded by the judge of the Court of Appeal – is that any woman can recognize the sensation of penile-vaginal penetration.

Common sense ends where prejudice begins, summarizes Ms. Chagnon. A judge can use common sense to take for granted realities that belong to common sense: for example, the Earth is round and autumn follows summer. This allows the judge to use certain facts that he can take for granted, even if they have not been proven, because they are common sense.

But common sense should not be confused with prejudices or stereotypes, warns Rachel Chagnon.

She cites as an example decisions related to sexual assault where judges considered that the clothing of a woman who walks alone at night indicates that she consents to having contact sexual.

To combat the possible confusion between facts from common sense and things that we presume because of prejudices and stereotypes, we developed this rule saying that we cannot base ourselves on unfounded hypotheses, she explains.

This is where the following passage, found in paragraph 109 of the Supreme Court judgment, comes into the equation.< /p>

When a person with a vagina testifies credibly and with certainty to having experienced penile-vaginal penetration, the trial judge must be able to conclude that she is unlikely to be mistaken. Although the trial judge's choice to use the words "a woman" may have been regrettable and caused confusion, in the context it is clear that the judge thought it extremely unlikely that the plaintiff was wrong about the sensation of penile-vaginal penetration because people, even when intoxicated, are generally not mistaken about this feeling. In other words, the judge's conclusion was based on his assessment of the complainant's testimony. The Court of Appeal erred in concluding otherwise, we read.

In this case, A woman's choice of words is called unfortunate by Supreme Court Justice Sheilah Martin because it could be seen as an overgeneralization. However, it is the word one, and not the word woman, which poses a problem because it suggests that this is the case for every woman in every situation.

When we look at the rest of the text, it is clear that the trial judge is not saying that all women tell the truth all the time when they say that they have been penetrated or that all women have a detailed understanding of their interior which would allow them to know every time whether they are being penetrated or not, analyzes Rachel Chagnon.

What the judge says is that he has before him a young woman who has said something and that he believes her. This is the distinction that the majority judges [of the Supreme Court of Canada] make in their decision. The judge is not making a statement that concerns all women as a whole; the judge is making an assertion about the witness before him, which he deemed credible, continues the professor.

It is therefore for this reason that the choice of the expression a woman could be confusing, according to the Supreme Court judge, and not for reasons linked to the expression person having a vagina.

The National Assembly of Quebec unanimously adopted, on Thursday, a motion (New window) which denounces the choice of words used in a recent judgment of the Supreme Court to designate women, which reiterates the importance of retaining the word "woman", and which dissociates itself from the use of terms or concepts that contribute to making women invisible.

The office of the Minister responsible for the Status of Women, Martine Biron, did not respond to our interview requests. However, she defended it tooth and nail in a statement provided yesterday by her press secretary to the Journal de Montréal (New window). Our government will always protect the rights of women. The Supreme Court used words that attempted to make them invisible. It was important to denounce this practice, we can read there.

According to Ms. Chagnon, presuming that the Court Supreme Court of Canada used the expression person with a vagina in his judgment to avoid using the word woman is a good example of an unfounded hypothesis.

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