This is the original draft sent to a media outlet when I pitched a story to write on the Cindy Gladue case. I did not sign off the published article, which had major factual and legal errors. The published article also contained phrases and words I would clearly never employ in my writing. I asked the editor to remove my name, remove the article, or use the draft I signed off on. I did not want my name attached to the article that was published as I could not stand by it 100%. The published article has since been removed. Again, this is the original draft.
On June 22, 2011, Bradley Barton left Cindy Gladue’s body in his hotel room after he checked out and went to work. In a statement to the police, his co-worker stated that Barton told him it “would be a good day unless the cops showed up.” His co-worker asked him what he meant by this statement and Barton explained that there was a dead woman in his bathtub. His co-worker asked if Barton called the police. Barton did not call the police until his co-worker suggested he do so.
Back at the hotel, a hotel maintenance worker described the room as having blood everywhere. There was blood in the bathtub, where Cindy lay dead, on the sheets, on the carpet and significant blood in and around the bathtub. Barton testified that he digitally penetrated Cindy with her consent. He said that after he removed his fingers, he noticed blood on his hand. At that stage, he stated he would not pay Cindy for her services and that she should shower and leave the hotel room. Barton said that Cindy told him she might be menstruating. Of course, blood from menses does not cause blood to appear “everywhere.”
In a statement made to police, Cindy’s boyfriend said he tried to contact Barton at the number he provided when Cindy. Her boyfriend said he called the number provided at approximately 4:00 am and that someone picked up but then quickly disconnected the call. Her boyfriend then went and knocked on the hotel room door. There was no answer but her boyfriend stated to the police he heard movement in the room. If the above holds true, then this contradicts Barton’s version of events that he was sleeping. Barton, in his defence, explained that he fell asleep to the running water from the shower.
Video evidence shows that Cindy and Barton entered the hotel room just before 1:00am and shows Barton leaving the room around 8:00am. Cindy’s boyfriend said he called the number Barton provided around 4:00 am. At what point did Barton fall asleep? Did he still hear the water running at 4:00 am? Did he hear the knocking at his hotel room door shortly after the phone call? Did he not hear a body fall in the shower if Cindy did indeed walk to the bathroom herself? Did Barton still notice the shower was running when he left for work that morning? What time did he meet his co-worker? Did he start work at 6:00am or 7:00am? Barton was already checked out of the room by 8:00am. He was ready to continue on with his day even as a native woman lay dead in his hotel room bathtub. He did not think to call the police. And why would he? Cindy was just another dead Indian.
The 1200+ missing and murdered Indigenous women tell society that Indigenous women are disposable. Cindy is just another number. She is just another statistic in a pile of missing and murdered Indigenous women. But who cares? Barton certainly did not care.
In this case, the Crown unsuccessfully argued that Barton committed a sexual assault that caused Cindy’s death. There was no real dispute about how the death was caused. And so, if the sex were not consensual, then the appropriate verdict would be manslaughter rather than aggravated sexual assault. Under section 229(a) of the Criminal Code, the crime would be elevated to murder if Barton intended to cause Cindy’s death. Given that the death occurred while committing a sexual assault, the crime would be classified as first-degree murder under section 231(5) of the Criminal Code. Yet, he was acquitted on both the murder and manslaughter charges.
This verdict raises a series of questions about how sexual assault law treats the consent of women like Cindy. The digital penetration caused an 11 cm wound, resulting in Cindy bleeding to death. Barton’s defence was that Cindy consented to the sexual activity because she “appeared to him to be enjoying herself.” Yet, the issues remain: was it aggressive digital penetration that Barton admitted to doing or was it a weapon, as some expert evidence indicated, that caused the wound? Consent to either action that resulted in Cindy bleeding to death is impossible. More explicitly, Cindy certainly cannot and did not consent to being abandoned with a bleeding, fatal wound.
The law around sexual assault and consent states there are three elements of proof: touching, sexual nature of the contact and absence of consent. The first two elements are established objectively. The third element is established based on the mind of the complainant at the time of the sexual activities. We must look into the mind of the complainant—not the accused. If Cindy attended the hotel room on the belief that she was going to be paid for sexual services, but then later was not paid, would she have gone to the room in the first place? Does money change the circumstances of sexual assault?
Section 265 of the Criminal Code states that “no consent is obtained where a complainant submits or does not resist by reason of (a) the application of force to the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.” Barton was not in a position of authority. We do not know if Cindy resisted. We only know the story from Barton’s perspective. Yet, the absence of consent is to be looked at from the mind of the complainant. Unfortunately, we cannot ask Cindy what she did or did not consent to—she is dead. But if Barton agreed to pay for sexual services, engaged in sexual services and then later withheld payment because of an injury he caused, did he obtain consent through fraud?
Cindy had a blood alcohol limit four times the legal limit. Barton testified that Cindy consented. The judge then instructed the jury by stating the following, “drunken consent is still valid consent.” In essence, if someone is an Indigenous sex worker who can tolerate alcohol four times the legal limit, this is enough to establish consent. The judge also instructed the jury to consider Barton’s “perceptions of Ms. Gladue’s responses – verbal and non-verbal” when thinking about Barton’s defence of mistaken belief. If a sex worker enjoys sexual activity which later results in an injury that causes her to bleed to death and if an accused withholds payment because of said injury, then that is sufficient to establish consent. In other words, if a sex worker “enjoys” being assaulted, then that seems to be enough to establish consent.
The acquittal of Barton tells sex workers that if they are sexually assaulted and their client can establish consent because of their bodily (non-verbal) responses, they consented. It appears that money does change the circumstances of sexual assault or assault. And well, if she does not survive the assault, it doesn’t matter if she consented—if her bodily (non-verbal responses) tell the client she enjoyed “it”, then that may be enough to establish consent and enough to be acquitted for manslaughter or murder.
But money does not change the circumstances of violence. The law is clear. Nobody can consent to violence. Nobody can consent to his or her own death. Most certainly, sex workers do not consent to violence and they most certainly do not consent to their own deaths. The acquittal in the Cindy Gladue case sends a clear message to sex workers, especially to those sex workers who are also Indigenous: The laws surrounding consent and assault or sexual assault do not apply equally to them.
With the acquittal of Bradley Barton, it tells sex workers that transactional sex does change the circumstances of violence – that violence is condoned in the context of a transaction. People can argue that all prostitution is violence and that nobody chooses to be a prostitute. In this case, that view both ignores and condones the violence that occurred. In Cindy’s case, she voluntarily went to a hotel room, not once but twice. While one can consent to engage in an exchange of sexual services for money, one cannot consent to violence. Her voluntariness ended with the violence and cruel neglect that Barton delivered to her.
In the case of Cindy Gladue, we are left with more questions than answers. We do not know if Cindy resisted. We only know that Barton said she seemed to be enjoying herself. Yet, the law states that we must consider the assault in the context of the complainant. Barton went a little bit harder than the previous interaction. He admitted to causing the injury. Barton said he was mistaken on the consent of Cindy. But we don’t know if Cindy resisted. Did she ask Barton to stop? Did she ask Barton to not go as hard? Did Barton continue despite Cindy’s resistance? Money should not change the circumstances of violence.
Some lives matter more and in the lives of Indigenous sex workers who also use substances, the acquittal of Barton tells them that their lives matter less—they are just another number, another statistic. The acquittal of Barton tells Indigenous sex workers that their assailants can continue to go on with their daily lives, just like Barton admits he did after ignoring Cindy Gladue’s injuries, subsequent death and then heading to work after that violent night. The acquittal of Barton tells Indigenous sex workers that their lives are disposable. The acquittal of Barton tells Indigenous sex workers that one day he or she will be just another dead Indian.