Winnipeg Free Press by Karen Busby 8 April 2015
Many have welcomed the decision of the attorney general of Alberta to appeal the acquittal of Bradley Barton for the death of a Cree woman, Cindy Gladue. In spite of 30 years of feminist advocacy to reform rape law and rape culture, convictions still are difficult to obtain in sexual-violence cases. Getting an acquittal overturned is even more difficult.
Barton and Gladue had been together for two days in a hotel room. She bled to death in the bathtub from an 11-centimetre tear to her vagina wall while Barton slept. While the Crown’s witness asserted a sharp instrument must have caused the tear, the defendant’s expert disagreed, asserting the tear could have been caused unintentionally, perhaps unknowingly, when Barton inserted his hand into her vagina.
Defence counsel often raise the spectre of consent to rough sex as a justification for their clients’ apparent violence. This defence should not succeed, in my view, unless the evidence establishes the parties agreed on what they would do and how consent could be withdrawn, and the acts engaged in are not excessively dangerous. In the last 20 years there have only been three other reported cases in Canada where a victim died as a consequence of rough sex, and in all three cases the defendant was convicted of at least manslaughter. It is useful to note in the Barton case, he was not only not convicted of murder, but the jury also did not convict him of manslaughter, an included offence in the murder charge.
One welcome development of this appeal would be a clarification on the limits of consensual rough sex.
The police searched Barton’s computer and found he had visited websites depicting non-consensual extreme penetration and torture. Many people are perplexed by the Crown’s decision not to tender this evidence at trial. Some reports indicate the search might have been illegal and, therefore, the evidence obtained from it was not admissible. As well, evidence of propensity to engage in certain behaviour is rarely admissible unless it is highly unusual and very fact-specific. For example, evidence that Barton had recklessly caused bodily harm to another woman in circumstances similar to those in this case might have been admissible. But evidence that he might enjoy depictions of such behaviour does not — according to the perhaps troubling logic of the law — support the inference he would engage in such behaviour.
Not having attended the trial, it is impossible to evaluate whether Gladue was capable of consenting to the sexual activity. However, if as reported by the media, the judge advised the jury Barton could imply from her consent to sexual activity on the first day they were together that she was also consenting on the second day, an appeal court should overturn the decision. Consent to sexual activity in Canada must be contemporaneous. It cannot be implied from previous activities, it is withdrawn if a complainant has lost the capacity to consent through extreme intoxication or unconsciousness and, as noted, perhaps there are some activities that are so inherently dangerous consent is simply not possible.
The Crown’s unprecedented decision to enter as an exhibit Gladue’s torn vaginal wall may be raised by the appeal. This decision is puzzling as a jury would not have had the expertise to have examined this exhibit and make a determination as to whether the injury was the result of a deliberate cut or an accidental tear. As protests across the country during the last few days have demonstrated, many see this use of Gladue’s body as offensive and disrespectful. A differently composed jury could have the same visceral reaction, which, arguably, could have compromised the fairness of the trial.
The appeal may raise issues about jury composition. Study after study demonstrates many people believe women are responsible for being raped if they had been drinking or were wearing sexy clothing or have had many sex partners. Such beliefs cast a shadow over police charging, prosecutorial decision-making and jurors’ deliberations. Acceptance of rape myths is linked to minimization of harm and attribution of blame to victims and the reduction of responsibility attributed to perpetrators. As men are more likely to adhere to these beliefs than women, it is hardly surprising the Barton jury was made up of nine men and two women.
Many are concerned no indigenous people were on the Barton jury. In 2007, only 44 of more than 12,000 reserve residents in the Kenora district were included in the jury roll. Why? Because jury pools are usually randomly selected from voters lists. As many indigenous people are not registered to vote, they do not make it into the pool. The Supreme Court is expected to rule in the next few months, in a case called Kokopenace, on whether this selection process results in juries that violate indigenous defendants’ charter-protected right to a fair trial. But even if the court finds a violation of the right to a jury of his peers, it is by no means clear complainants have similar rights.
Karen Busby is a professor of law and director of the Centre for Human Rights Research at the University of Manitoba