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Man deemed a 'clumsy Don Juan' by judge convicted in second trial

Justice's comments in first trial sparked outrage, led to review and apology

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The Thompson man a trial judge once described as a "clumsy Don Juan" was convicted this afternoon — for the second time — of a 2006 sexual assault of a young woman.

Justice Lori Spivak said Kenneth Rhodes, now 43, was not a credible witness at his second trial held this past spring, adding that she believed Rhodes had "tailored his evidence to suit his purposes. He was defensive, and evasive. His testimony lacked consistency... His account of what occurred changed as questions were asked," Spivak stated in a written decision released earlier this afternoon.

Rhodes will be sentenced at a later date following the completion of a pre-sentence report.

Crown prosecutor Sheila Seesahai said outside of court that she will ask Rhodes serve a prison sentence of two years or more.

Rhodes had pleaded not guilty to the charge, claiming the sex was consensual or he thought it was consensual.

It was the same defence Justice Robert Dewar rejected at Rhodes’ first trial, but it was Dewar’s comments at a sentencing hearing in February 2011 which prompted national outrage.

Dewar suggested the victim’s clothing and flirtatious behaviour were partly to blame for the attack, which involved forced anal, vaginal and digital intercourse in a wooded area outside of Thompson. Dewar called Rhodes a "clumsy Don Juan" who may have misunderstood what the victim wanted.

"This is a case of misunderstood signals and inconsiderate behaviour," Dewar said in his sentencing ruling.

Dewar said he didn’t want to be seen as blaming the victim, but that all of the factors surrounding the case must be viewed to assess "moral blameworthiness."

"I’m sure whatever signals were sent that sex was in the air were unintentional," he said.

Both Rhodes and the Crown filed appeals; the Crown wanted the conditional sentence replaced with a three-year prison term, while Rhodes asked for the conviction to be set aside.

The Appeal court ordered a new trial, which was held in Thompson at the end of April and May.

Dewar’s comments led to protests locally and across the country, and several complaints were filed against Dewar with the Canadian Judicial Council, including a complaint from the provincial government.

Before the appeal court released its ruling on a new trial, the CJC stopped short of disciplining Dewar but said his remarks showed a clear lack of sensitivity toward victims of sexual assault and fell short of the high standard Canadians expect of all judges.

In the release from the CJC, Dewar apologized for his comments and said he wished to "express my unequivocal apology to (the victim) for the hurt she must have experienced from my comments."

Dewar had also met with an expert on gender equality and was pursuing further professional development in that area.

This afternoon’s hearing was conducted via a video conference, with Rhodes and his defence counsel in Thompson, while Spivak and Crown prosecutor Sheila Seesahai were in a courtroom in Winnipeg.

Spivak said she had no doubt Rhodes was guilty, adding the victim, who was 20 at the time of the attack, was consistent in her testimony and unshaken as to what happened.

"The (victim) was compelling in her account of the sexual assault," Spivak stated. "Her evidence was detailed and precise. Her testimony did not seem contrived and she testified in a genuine manner. She provided specifics about how she was," attacked. "I was struck by the way she described her feeling of fear at the time, recounting the terror she felt."

Rhodes had been free on bail following the appeal court ruling. However, Seesahai filed a motion to have Rhodes held in custody on the grounds he had recently breached his bail — he was found drunk — and served three days in jail. Seesahai said bail should also be revoked because Spivak had found him guilty.

Another hearing is expected to be held soon to deal with the bail revocation.

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