Cheryl VanHuizen’s last text to her son promised she would call him tomorrow. Less than two hours later, she was dead.
Her neck cartilage was fractured in three places. Her face and body bore bruises and abrasions. She had multiple anal injuries, including a rectal tear the forensic pathologist determined occurred after death.
The Crown alleged her common-law spouse, Shawn Trowbridge, sexually assaulted VanHuizen and strangled her during an argument. The argument was that her extreme injuries, as well as other evidence, showed that Trowbridge intended to kill her.
Trowbridge said she had asked him to strangle her during sex and that her death was the accidental outcome of consensual sexual choking. VanHuizen could not give her account. The jury acquitted him of murder, showing the power of the “rough sex” narrative in creating reasonable doubt, even on facts such as these.
A new trial exposes a legal gap
On Sept. 25, the Court of Appeal for Ontario set aside Trowbridge’s acquittal and ordered a new trial on a charge of manslaughter. That decision provides another opportunity for accountability. But the court’s revised test for invalidating alleged “consent” leaves a gap in protection against strangulation, a dangerous and growing form of sexual violence that disproportionately impacts women.
Trowbridge’s own account revealed his knowledge of sexual strangulation’s danger. He acknowledged deliberately interfering with blood flow and oxygen reaching VanHuizen’s brain. He testified that he had strangled her many times before, twice rendering her unconscious.
He said he knew strangulation could cause injury or death and had been reluctant to strangle her. Their supposed safety arrangement required her to tap his arm to make him stop.
An arrangement like this places responsibility for preventing injury on the person whose ability to communicate is being compromised. Strangulation can impair speech, movement and consciousness. A woman may be unable to speak or signal precisely when she most needs the strangulation to stop.
Calling this practice sexual choking obscures its nature. External pressure on the neck can deprive the brain of oxygen, damage blood vessels and cause brain injury, stroke or death. Serious injury may occur within seconds or minutes, with less pressure than it takes to open a can of pop and without visible marks. As sex neuroscientist Debra Soh has argued, the normalization of sexual choking through pornography and popular culture does not make it safe.
The Court of Appeal for Ontario recognized that consent has limits: agreement to sexual activity can become legally ineffective when serious injury results. Failure to instruct the jury on those limits warranted a new trial.
But the Ontario court rejected the Court of Appeal of Alberta’s approach in R v Barton, a case in which the accused caused an 11-centimetre wound to Cindy Gladue’s vaginal wall, which in turn led to her death through blood loss. Although Bradley Barton claimed she consented to the sexual activity that caused the wound, the Alberta court ruled that at law, consent cannot be given when the perpetrator ought to have known that significant bodily harm could result from his acts.
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In Ontario, the Trowbridge ruling required proof that the accused both caused serious bodily harm and intended that harm, knew there was a risk that serious harm would ensue or was wilfully blind to it.
It is true Trowbridge may be convicted of manslaughter in his new trial, given his acknowledgement he was aware of the serious risks of strangulation. However, in a culture inundated with misinformation about “safe choking,” ignorance can become legally advantageous. Someone who deliberately compresses a partner’s neck may argue that he neither intended serious harm nor understood the danger.
Why should protection against foreseeably devastating injury or death depend on proving the person applying the pressure personally appreciated its risk? Where the woman has died and cannot testify about consent, the law urgently needs safeguards.
The law must reflect strangulation’s risks
The Trowbridge decision emphasized the importance of sexual autonomy and the need to avoid criminalizing consensual activities causing minor injuries. Sexual autonomy matters. But strangulation is a dire threat to autonomy; it can disable the ability to choose, communicate and withdraw agreement. Experts agree strangulation can never be done without risk of serious injury or death.
Our research on how Canadian courts respond when women allege injuries, including strangulation, during sexual activity that men allege was consensual reveals recurring failures to recognize these medical realities. Courts sometimes minimize the danger of strangulation, expect visible injuries or treat a woman’s impaired memory as a credibility problem. The language of “rough sex” can make potentially lethal violence appear to be “just sex.”
A new trial will determine Trowbridge’s responsibility for, at most, manslaughter. Meanwhile, Parliament must clarify that consent is not a defence to strangulation. Public health authorities must explain its dangers, while police, prosecutors and judges need training on its often-invisible injuries and effects on communication and memory.
Women’s protection cannot depend on proving that the person strangling them understood the danger.
