VAGINAS IN THE COURT ROOM: Considering the law and ethics of presenting vaginal tissue in open court
NB: The following is an excerpt from the longer paper - click here to read the full entry.
The material below contains graphic descriptions of sexual violence and criminality.
On March 10, 2015, an Alberta Court made the decision to allow a deceased Indigenous woman’s vaginal tissue into open court. One of the most recognizable victims in modern history, Ms. Cindy Gladue, was reduced to a piece of tissue in a truth-seeking process that did not include the truths of Indigenous groups, in hopes of providing justice. Members of the media, the victim’s family, the jury, bailiff, and every other average Joe that came into the courtroom that day watched Ms. Gladue’s dignity stripped away her most private area handled like an object in open court. Objectified, dehumanized, and raped as an aid to explanation for the jury, the image was projected onto a large screen at the front of the court room for all to see.
In the pursuit of justice, The Honourable Mr. Justice Robert A. Graesser granted the Crown’s request to admit this vaginal tissue into evidence. Set with the task of upholding ethics of the profession, the integrity of the court and with the pretext of Canada’s pursuit of reconciliation, Justice Grasser permitted the preserved tissue from Ms. Gladue’s vaginal wall to be used to demonstrate the wound that violently ended her short life.
Indigenous people living in what is now Canada are not strangers to having their legal interests, dignity, children, and way of life taken away from them and reshaped by State actors. Indigenous women are even more accustomed to the violence perpetrated against them going unacknowledged and left without available resources to learn about spiritual healing. Often with disregard for the laws of Indigenous Nations, decisions have historically been and continue being made about Indigenous peoples, by non Indigenous peoples, without any consultation or consideration.
The ethical decisions made by the Crown and the judge in R v Barton <1> have resulted in more damage to reconciliation that it has good, in terms of seeking satisfaction for the victim and family. As was aptly said by The Globe and Mail: "this is a case that has critical implications for women's rights to bodily autonomy and also the rights of Indigenous women." <2> The 2017 Court of Appeal did not review the admission of this piece of evidence, and the issue has not been submitted by the parties for review at the October 11, 2018 hearing at of the Supreme Court of Canada.
This review of the trial court decision considers the ethical choices that were made by the Crown attorneys and the judge in the application to and ultimate admission of the vaginal tissue into evidence. The concept of consent and the Victims Bill of Rights will be reviewed before considering alternative options that were available to the court. Finally, the paramountcy of including Indigenous voices in decisions about Indigenous people will be discussed, and the need for more indigenous voices in the justice system will be set out.
1 R v Barton, 2015 ABQB 159, para 65 [Barton QB].
2 Topher Seguin, Supreme Court to Hear Appeal of New-Trial Decision on Cindy Gladue Case, online: The Globe and Mail <https://www.theglobeandmail.com/news/national/supreme-court-to-hear-appeal-of-new-trial-decision-in-cindy-gladue-case/article38247550/>.