The Supreme Court of Canada indicated in a rape ruling that the use of the term "woman" to refer to the could cause "confusion," so she proceeded to refer to her as a "person with a vagina."
It should be noted that none of those involved in the case are transgender, and the victim identified as a woman and was referred to with female pronouns. However, Judge Sheilah Martin, who authored the ruling, noted that a judge's use of the word "woman" may "have been unfortunate and engendered confusion." However, Martin did not explain at any time why the confusion occurs, nor why "person with a vagina" eliminates the possibility of error.
'Extremely unlikely that a woman...'
In 2020, a lower court ruled on a rape allegation. In the ruling, the judge rejected one of the defense's allegations, noting the victim "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..." This last part was the one that prompted the correction from Martin, who indicated that it would be more correct to have said that "it is extremely unlikely that a person with a vagina would be mistaken about that feeling."
It was this part that has caused the Supreme Court to end up reviewing the case, since an appeals court reversed the initial sentence considering that it was based on a "speculative reasoning" by assuming that a woman would immediately know the sensation of being vaginally penetrated. "He (the trial judge) made an assumption on a matter that was not so well known as to be notorious," reads the ruling. The National Post provided context on this wording, saying that "the word 'notorious,' in this instance, is a legal term referring to a matter so obvious that it doesn’t need to be proved."
'A woman is unlikely to be wrong about the sensation of vaginal penetration'
Martin rejected this notion, calling in favor of the initial sentence, and opening the debate on the use of "person with a vagina" judicially: "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 continued: "It is a necessary part of judicial reasoning to assess evidence in relation to a benchmark of what might be ordinarily expected. ... I conclude that it is a reasonable generalized expectation that a woman is unlikely to be mistaken about the feeling of vaginal penetration."
