Blindly – like Panurge’s sheep -, through a unanimous motion, our Quebec elected officials dissociated themselves from “the use of terms or concepts contributing to the invisibility of women”. On Tuesday, Québec solidaire and the Quebec Liberal Party amended their position, recognizing errors in its adoption. The damage was done: parliamentary sovereignty wrongly spurred the supreme judicial power.
Let’s see the context of the slip-up. Editor of the Supreme Court judgment (R. v. Kruk), Judge Sheilah Martin analyzes the possibility that a woman could be mistaken about the sensation of penile-vaginal penetration. During a trial for sexual assault, the intoxicated victim described feeling the accused’s penis inside her.
The finding of sexual intercourse was logically compatible with important circumstantial elements of the evidence, writes Judge Martin. It was therefore appropriate to scrutinize the factual testimony of the complainant and her feelings. It seemed extremely unlikely to the Supreme Court that a person could be mistaken about the sensation of penile-vaginal penetration. Therefore, in the absence of a manifest or decisive error, this was a legally admissible hypothesis at trial.
Conjecture and common sense
A conjecture is the absence of factual basis. Perceived as an error of law, an assumption occurs when the trial judge erroneously concludes that a piece of evidence generates a reasonable doubt about guilt. By applying “common sense,” the judge determines that a story is either plausible or inherently fanciful.
Judicial reflection admits the use of generalizations based on an understanding of human behavior. It allows the evidence to be weighed and the credibility of the witnesses to be assessed. Reasoning based on how people tend to behave is permitted. The same goes for the usual course of events. However, life experience can never contradict accepted evidence.
When it comes to human behavior, the application of common sense and reliance on generalizations based on acquired knowledge allows the trial judge to determine whether a story is plausible or improbable. Common sense is not a catch-all expression authorizing any form of reasoning based on falsehoods or discriminatory beliefs.
Sexual assault against a woman can involve contradictory versions about non-consensual contact, according to a complainant. In itself, nothing prevents the use of common sense to assess the reliability and credibility of testimonies.
With all due respect to the Minister responsible for the Status of Women, Martine Biron, the use of the word “vagina” in a legal analysis context has no coincidence with the invisibility of women. The unanimity of the National Assembly’s motion simply characterizes thoughtlessness. What a pity !