B.C. man sentenced for Indigenous woman’s murder after court rejects ‘rough sex’ defence

Carmelita Abraham is shown in a photo provided by the RCMP.

Warning: This story contains disturbing details

A B.C. man was found guilty and sentenced for murder after failing to convince a judge that the woman he killed and dismembered consented to the strangulation that caused her death.

The victim, Carmelita Abraham, 33, a member of the Takla First Nation, was last seen alive in late-December of 2021. The RCMP later announced that the case had evolved from a missing persons investigation into a homicide probe.

Joseph Bernhart Simpson, 51, was charged with murder and indignity to human remains on Jan. 15, 2022. Mounties described the circumstances of the case as “a tragic incident that occurred between Joseph Simpson and Carmelita Abraham, who were known to one another.”

The judge’s decision in the case was published on Oct. 1. The next day, according to the B.C. Prosecution Service, Simpson was handed a life sentence with no possibility of parole for 14 and a half years for second-degree murder and four years for interfering with human remains.

Simpson pleaded guilty to the second charge, which stemmed from police finding parts of Abraham’s dismembered body in garbage bags in his basement.

He also admitted to killing Abraham – but mounted a defence that, if successful, could have seen him acquitted or convicted of a lesser charge.

“There is no issue that Mr. Simpson caused Ms. Abraham’s death by manual strangulation during an incident at his home,” Justice Terence A. Schultes wrote in his decision.

“However, he maintains that this occurred without any accompanying intent on his part, during an act of consensual sexual intercourse with her.”

The trial took place over 14 days in Quesnel and the judge’s decision includes extensive and disturbing descriptions of the evidence the court heard about the injuries Abraham suffered, how her body was found and what Simpson told the mother of his children about his crimes – including that he “felt nothing” when killing Abraham and had “no remorse.”

Convicting Simpson of murder, it was the evidence of a medical expert who testified about the fatal strangulation that the judge found particularly persuasive.

“It is the evidence of the amount of time that pressure must have been exerted on Ms. Abraham’s neck in order to cause her death that satisfies me beyond a reasonable doubt that Mr. Simpson intended to kill her,” Schultes wrote.

“In the context of a person having their hands in that position and exerting sufficient pressure to cut off their victim’s oxygen supply, several minutes is a very long time to be faced with the obvious effects of those actions and the obvious consequences of continuing in them.”

Additional injuries to Abraham’s body including bruises to her face, chest and feet and swelling, the judge said, were “strongly suggestive of a serious assault preceding or accompanying the choking, which once again is completely inconsistent with a carefully controlled consensual sexual act.”

The ‘rough sex defence’

Isabel Grant, a professor at UBC’s Allard School of Law, is one of several legal scholars who has studied the defence Simpson used – what she refers to as the “rough sex defence" – and its use in Canadian courts.

The defence, broadly speaking, allows an accused to argue that if injury or death occurred during a consensual sexual act, a criminal offence did not occur.

In the roughly 100 cases Grant and her colleagues looked at between 1988 and 2021, every accused person who used this defence was male and 94 of the 97 complainants were female.

“It’s totally gendered,” she told CTV News.

“This is just the newest version of ‘she asked for it,’’' she continues, referring to the pernicious trope wherein female victims – particularly in sexual assault and domestic violence cases – are blamed for the violence they experience.

Of the cases examined, 75 were sexual assault cases and more than half of those involved the more serious charges of sexual assault causing bodily harm or aggravated sexual assault. The most common relationship between the complainant and the accused was an intimate partner relationship.

Grant notes that the law regarding the rough sex defence has seen recent changes as a result of ongoing appeals and decisions in the Cindy Gladue case.

Gladue, a Cree-Métis mother of three, bled to death from an 11 centimetre wound to her vagina in the bathtub of an Edmonton hotel room in 2011. That case that drew national outrage after the man who admitted to causing the injuries that killed her was acquitted of murder after a trial during which Gladue was repeatedly referred to as a “native” and a “prostitute” and saw her remains – specifically her preserved vaginal tissue – introduced as evidence.

In cases like Gladue’s and Abraham’s, Grant notes, a deceased victim can’t present any evidence of her own.

“There’s never going to be anything to counter his assertion that ‘she wanted me to do this,’” Grant says.

The judge rejected Simpson’s evidence of consent for a number of reasons, describing it as “convenient” and “highly strategic.” But it was one omission that she found particularly damning.

“Nowhere did he testify to words or gestures by her by which she communicated her consent to these actions to him,” Schultes wrote.

“There can be no implied consent to sexual activity, no broad advance consent to such activity of an undefined scope, and no finding of a propensity to consent based on past consents. The consent of a complainant must be directed to each and every act and must be provided at the time that it occurs,” the judge said, summarizing the law.

Cases in which consent is used as a defence, Grant says, has the effect of conflating a perpetrator’s acts of violence with the victim’s exercise of sexual autonomy.

“There are no cases where women testified that they consented to all of the violent sexual activity that formed the subject matter of the charge. There are no cases,” she said.

“Women are not saying, ‘I consented to this.’ They’re saying, ‘it hurt me, it injured me.’ They’re saying, ‘I never consented to this at all.’”

But in cases like Abraham’s – what the court, the loved ones of the victim, and the public are left with is the testimony of the accused and the disturbing evidence that led to the conviction.

“He just literally talked about her as an object, even in describing their sexual activity,” Grant says.

“I can’t imagine what it was like for her loved ones to have to listen to his testimony.”