Warning: Graphic content follows.
In a Toronto courtroom exactly a year ago, a forensic pathologist on the witness stand at a first-degree murder trial showed a slide — projected on the screen and magnified — of the victim’s external genitalia. An excised scrap of flesh from the clitoris to the anus.
Rigat Ghirmay was reduced to her most intimate body parts. It was the most cruelly invasive, demeaning post-mortem evidence I’ve ever seen in decades of covering trials. And court had already been shown photographs of Ghirmay’s dismembered corpse: her buttocks, her bisected torso, her long leg bones.
I was apparently the only person present outraged by the display. It was utterly unnecessary, exposing Ghirmay’s private parts in open court. The pathologist could draw no conclusion as to whether the woman had been subjected to sexual trauma before or after death. There was no relevance to that specific piece of forensic evidence.
Ghirmay was a 24-year-old Black woman, a refugee from Eritrea.
Two years earlier, prosecutors in a murder trial in Edmonton made the unprecedented decision to bring the victim’s preserved vagina into court as an exhibit. Casting aside all existing courtroom ethics, the Crown insisted it was crucial for jurors to see the tissue with their own eyes because the trial hinged on whether an 11-centimetre wound, a slash through the vaginal wall — what caused the victim to bleed to death in a motel bathtub — had been made by a sharp weapon, as the prosecution argued, or by the accused shoving his fist into the woman’s vagina, as the defence maintained. Accidental.
In that case, long-distance trucker Bradley Barton claimed the wound had been inflicted during “consensual rough sex.” In a stunning verdict, Barton was acquitted of murder and manslaughter. That verdict was set aside by the Alberta Court of Appeal, which ordered a new trial. The case was further appealed to the Supreme Court of Canada and heard this past Thursday.
An Aboriginal and a Black woman. I highly doubt that any prosecutor in Canada would ever dare take such exhibitionist liberties with the intimate remains of a white woman. To my knowledge, it’s never been done. Nor has a male murder victim’s penis or testicles been trotted into court, even in cases of dismemberment. But of course rape is almost entirely a gender-specific crime. A woman’s vagina is the crime scene.
The theme of an inherently racist justice system — particularly the original trial judge’s charge to a jury of nine men and two women, none of them Indigenous — was a common denominator in submissions to the Supreme Court justices by 16 intervenor groups. How Gladue was presented at trial, a victim who could not speak for herself, was a “horrific example of a system designed to dehumanize and punish Indigenous woman,” as asserted in a statement from Institute for the Advancement of Aboriginal Women and the Women’s Legal Education and Action Fund.
I take no issue with that view. At trial, Gladue was referred to 26 times as a “native,” by both Crown and defence, rather than by her name. But, while the victim’s Indigenous status was certainly relevant to the life she led as an impoverished mother turning $60 tricks, I wouldn’t put the emphasis there. The trial perpetuated rape myths — “twin myths” — about a victim’s sexual background: that the woman was more likely to have consented to rough sex because of her sexual history and that she was less believable because of that sexual history. A sexual history that skewed to the defendant’s version of events because Gladue could not speak for herself.
During trial, Gladue was referred to as a prostitute 25 times.
The Alberta Court of Appeal took pointed note that the trial judge had erred in his jury instructions by allowing evidence of Gladue’s sexual history, which flung open to door to racist and sexist stereotypes.
“This case has revealed the inescapable need in sexual offenses to properly warn jurors to disregard unfair assumptions and to ensure that jury instructions adequately and accurately reflect the current law in Canada,” wrote Chief Justice Catherine Fraser in the unanimous decision. “The courts cannot permit this to go on. We must correct this. And we will.”
Yet it is allowed, time after time in Canadian courtrooms, despite the “rape shield” amendment past by Parliament in 1992, which — except in the narrowest circumstances — bars a complainant’s sexual history from being aired at trial. On countless occasions I’ve watched judges issue not a peep of objection when defence lawyers drag a complainant’s reputation through the mud. The women are battered and browbeaten on the stand, made to account for ever alcoholic drink they might have imbibed, every gesture they may have made, every teensy gap in their memories. On such minutiae do verdicts turn. Well, that and the one-size-fits-all of “reasonable if mistaken consent.”
At the Gladue trial, her sexual history was put before the jury without the judge first conducting a hearing for its admissibility without the jury present. Jurors were left with Barton’s account of rough sex with Gladue on their first night together, to which she’d allegedly consented, and his belief that Gladue was agreeable to similar, albeit even rougher sex, the next night.
The Alberta appeals judges questioned a woman’s likelihood to consent to force and violence and whether consent can ever be assured or argued as a defence when the acts are dangerous and harmful. As, indeed, the court noted by referring to case law from Ontario where a person died during a consensual fist fight. In that case, it was determined consent could not be given where harm was intended and caused. But the case law has not been applied to sexual assault.
Activists for women and Indigenous people are hoping the Supreme Court will set a new precedent for consent laws in Canada, including whether an “objective likelihood of harm” cancels out sexual consent. That’s unexplored territory.
The country’s top court could order a new trial under updated definitions of consent. Or, the justices could base a decision for a new trial on five other alleged errors in law by the trial judge while directing Parliament to rewrite the consent legislation. Every provincial attorney-general is watching.
During Thursday’s arguments, Justice Andromache Karakatsanis suggested past sexual activity should not be a factor.
“The fact that someone is a prostitute, and may have engaged in sexual activity in a commercially based transaction on a previous occasion, how is that possibly relevant to the issues this jury had to decide?” she asked.
Justice Michael Moldaver observed that limits on sexual history, intended to avoid potential prejudice, had been “skipped over” at trial.
“It would be a mistake of law to say (Gladue) consented the night before, therefore I can assume she’s going to consent tonight. That is classic error of law. That is rape mythology.”
The Supremes reserved decision. A decision is not expected for several months.
Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno