Suggestions of sex - though unintentional - the effect of alcohol and no prior criminal record added up to no jail time for a Thompson man convicted of a 2006 sexual assault, in a decision that has attracted national media attention, widespread condemnation and a judicial review.
"I don't criticize the complainant," Manitoba Court of Queen's Bench Justice Robert Dewar said Feb. 18 as he pronounced the sentence for Kenneth Rhodes, convicted of sexually assaulting a woman, who can not be identified, at the side of the highway south of Thompson. "She was a frightened young woman all alone in the presence of a large, perhaps loud, overbearing older man. But she did give signals that he read the wrong way and was not considerate enough to make sure of what they were saying."
Given the "inviting circumstances" - including the victim and her friend making it publicly known that they "wanted to party" outside a Thompson bar - and Rhodes' lack of previous convictions, Dewar ruled that a prison sentence was unnecessary, though the Crown prosecutor Sheila Seesahai had been seeking at least three years' of incarceration.
"Protection of society, I do not believe, is advanced one iota by putting Mr. Rhodes in jail," said Dewar as he sentenced Rhodes to two years less a day of virtual house arrest, with a curfew that allows him to leave for work and little else. "There is no real suggestion of recidivism."
He suggested that, given Rhodes' lifestyle, the sentence would be similar to incarceration.
"Mr. Rhodes likes his freedom to fish, to camp, to go out and visit," said Dewar, suggesting a conditional sentence restricting those activities imposes "jail-like conditions."
Apart from the lack of jail time for Rhodes, Dewar's comments during sentencing have outraged media commentators and members of the public, sparking a 100-person protest outside the provincial court in Winnipeg on Feb. 25 and prompting Globe and Mail columnist Christie Blatchford to write a column condemning the judge as dead wrong.
"It must be acknowledged that the parties met in what can only be described as inviting circumstances," Dewar said during sentencing. "At 2:30 on a summer morning, two young women, one of which was dressed in a tube top without a bra and jeans and both of whom were made up and wore high heels in a parking lot outside a bar."
The Thompson Crisis Centre characterized Dewar's comments as part of an outdated belief system that behaviour and clothing contribute to sexual assault.
"The Thompson Crisis Centre board, management and staff condemns unequivocally Judge Robert Dewar's antiquated statements about 'inappropriate female attire' contributing to sexual violence," said crisis centre executive director Leslie Tucker in an e-mail."His statements are archaic systemic notions that feed and perpetuate the lie that sexual violence can be mitigated by behaviour and dress."
Manitoba Labour and Immigration Minister Jennifer Howard, minister responsible for the status of women, announced Feb. 25 that the province would file a complaint with the Canadian Judicial Council, which has authority over all federally appointed judges in Canada, including the power to investigate complaints about judges' conduct.
"I am concerned that victims in sexual assault cases will fear being blamed for the crimes against them," Howard said. "When a woman doesn't consent to sex, there are no circumstances that warrant sexual assault or excuse an attacker's behaviour."
The council announced the same day that it is reviewing multiple complaints it had received about Dewar.
"The complaints against Justice Dewar will be reviewed in accordance with the Council's complaints procedures," said a Canadian Judicial Council press release. "Overall, 80 per cent of complaints are completed by the Council within three months, and 95 per cent within six months."
In convicting Rhodes, Dewar rejected his defence that he held a mistaken but honest belief that the victim had consented to sex.
""He acted at the side of the road without any further inquiry," said Dewar. "He took the lead and expected the complainant to follow. He was insensitive to what the complainant wanted."
The victim told the Winnipeg Free Press that she made it clear that she didn't want to have sex with him.
"I did say no to him. I kept saying no. He knew that I didn't want (sex)," said the woman, now 26.
However, the judge said, when it came to sentencing, there were "mitigating circumstances."
"There were signals given by the circumstances and indeed by the complainant, albeit the latter based upon self-preservation, which ought not to be overlooked," said Dewar.
"Even his sexual activity, as bizarre as it was and as hurtful as it was to the complainant can not be said to be only self-gratification," Dewar commented. "It had the characteristics of a clumsy Don Juan. I don't condone it. But it simply does not fit the archetypical cases cited. There was some invitation, however involuntary."
Because the offence occurred in 2006, prior to sentencing guideline changes made in 2007, which prohibit judges from handing down conditional sentences for sexual assault, Dewar said it was permissible to levy a conditional sentence for Rhodes' conviction. He also noted that the case was unlike other sexual assault convictions, which established three years in prison as the starting point for one kind of "archetypical" sexual assault conviction.
"Whatever might be said about this case, it is not the archetypical case described in R. v. Sandercock 1985," said Dewar, remarking that there was no evidence of Rhodes making threats or excessive advances. "The court must compare apples and apples not apples and oranges. Here there were no threats knowingly given. There was no violence knowingly imposed."
Rhodes, himself, Dewar noted, "said in his testimony that he wasn't out there to hurt anyone."
That doesn't fly with the Thompson Crisis Centre.
"Research clearly indicates that to a perpetrator, sexual violence is not a result of sexual desire but is something else altogether," said Tucker. "It is an act of power and control over another human being; it is an act of violence. Until violence is understood by the judiciary in this way, rape and sexual assault will flourish in our society and we and our children will not be free to pursue a balanced, confident, violence-free future."
Dewar determined that Rhodes had failed to verify consent.
"He did not inquire whether she wished to continue," said Dewar, and "pressed on" despite the victim, who had shown signs of intoxication, telling Rhodes she was uncomfortable on the ground at the side of the road. "I do not accept that the accused asked the complainant at the side of the road for any permission to proceed."
In Rhodes' defence, however, the justice noted that the victim, after having rebuffed his advances while they were in a car with other people, returned his kisses as they walked hand-in-hand on a gravel road off the highway.
"I'm sure that whatever signals there were that sex was in the air were unintentional but that does not change the fact that they were there more than just a manner of dress," said Dewar. "They are relevant mitigating factors. The signals given here in this case are at least relevant to the degree of moral blameworthiness of Mr. Rhodes."
The Crown attorney had argued, "strongly and effectively" said Dewar, that the fact the offence occurred in a remote area where the victim was vulnerable to the whims of Rhodes meant a prison sentence of at least three years should be handed down.
"She argues there is a lack of remorse and I tend to agree that the I haven't heard much remorse expressed," said Dewar. Still, said the judge, even without a jail sentence the consequences of a sexual assault conviction are serious for Rhodes.
"By this conviction he is branded a sexual offender," said Dewar. "He has been living under this cloud for four-and-a-half years."
Rhodes' history and the nature of the assault made a conditional sentence appropriate, said the judge.
"Not all guilty people are morally culpable to the same level," Deward remarked. "This difference is not reflected in conviction. It can be reflected in sentencing. I do not feel that the Sandercock starting point should be applicable in this situation."
"I'm faced with a man who has no criminal record whatsoever," said Dewar. "But for this one instance, he does not live up to the designation as a criminal."
Dewar noted that previous cases referenced in the submissions made by the Crown attorney and defence lawyer Derek Coggan did not exactly reflect the circumstances of this particular case.
"They made a tough case for me even tougher" said Dewar. "What I want to emphasize is that no one has brought to me a case like this one. There was no archetypical case like this one given to me. The facts of this case are unique."
