'Clumsy Don Juan' appeal eyed

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Justice Robert Dewar (POSTMEDIA)

A national legal group hopes to convince the Manitoba Court of Appeal to uphold the conviction of a rapist infamously dubbed a "clumsy Don Juan" by a Manitoba judge.

On Thursday, the Women's Legal Education and Action Fund (LEAF) will ask an appeal judge for intervener status in the case of Kenneth Rhodes, in light of "systemic issues" it says prejudices judges and juries against female survivors of sexual violence.

Rhodes was convicted of sexual assault in February, but was given a conditional sentence -- no jail time -- after Justice Robert Dewar said he acted as a "clumsy Don Juan" when he raped a woman on the side of a highway in 2004.

Initially, Crown attorneys appealed Dewar's sentence of two years of house arrest and probation, seeking stronger punishment.

But in legal filings submitted in mid-October, the Crown conceded legal errors Dewar made during the trial meant the conviction could not stand. Specifically, the Crown -- and Rhodes's attorneys -- say Dewar did not properly examine the evidence on whether or not Rhodes may have thought the victim consented to his sexual advances.

The Crown wants a new trial to get that part right; Rhodes's lawyers will demand a full acquittal. The appeal is set for Nov. 30.

In its motion to intervene in the case, LEAF said the mistakes Dewar made were of "no moment" (importance) to the verdict. Overturning Rhodes's conviction on that basis would be a "wolf in sheep's clothing" that would undermine the value of sexual consent, LEAF said, and could open the door for nearly all accused rapists to argue similar circumstances.

"The only issue in this case was one of consent or no consent," LEAF wrote. "(Dewar)'s findings of facts, supported by the evidence, led him to expressly conclude... that there was no consent."

Indeed, LEAF says, the facts of the case -- including injuries the victim sustained in the attack and the fact she asked if Rhodes intended to kill her -- made it "so clear that a sexual assault had occurred" there was little "air of reality" about Rhodes's claim he thought she consented.

It's rare for LEAF to get involved in provincial appeals; the group usually intervenes in Supreme Court of Canada cases, particularly sexual assault cases. With the Rhodes appeal, LEAF said one of its primary goals is to offer "important systemic perspective" on how victim-blaming beliefs can prejudice courts against survivors of sexual assault.

The group warned Dewar's comments were not isolated, calling victim-blaming a widespread problem in the justice system. They added this is especially true when the rape survivor is an aboriginal woman, as was the case in the Rhodes trial.

"The discriminatory beliefs which underlie (Dewar's) comments are serious and persistent and have not been eradicated," LEAF wrote. "Shedding the discriminatory beliefs and stereotypes about women who are victims of sexual assault is a matter of pressing public interest."

LEAF also blasted Dewar for saying "something bad (was) bound to happen" when the victim and her friend accepted a ride home with Rhodes and his friend from a Thompson-area bar, and the two women were "looking to party" in high heels and makeup. Those facts, Dewar said in February, meant "sex was in the air."

If allowed intervener status in the appeal, the group plans to explain the fact Dewar considered those elements in convicting and sentencing Rhodes sent the message survivors are partly to blame for the crimes committed against them. "The comments... play on discredited legal norms that consent to sex can be implied from a woman's dress, state of intoxication, or presence at a bar at closing time," LEAF wrote.

melissa.martin@freepress.mb.ca

What the numbers show

DO Manitoba survivors of sexual violence have a harder time finding justice? In legal documents filed recently, the Women's Legal Education and Action Fund wrote about ongoing systemic discrimination against women on the issue of consent. The group cited 2009-10 Statistics Canada data that found fewer sexual-assault cases in Manitoba end with a perpetrator in jail than in the rest of the country -- or even when compared to other violent crimes within the province.

SEXUAL-ASSAULT CASE OUTCOMES

-- Guilty verdict

Manitoba: 31%

Canada: 43%

-- Charges dropped

Manitoba: 67%

Canada: 46%

-- Sentences include jail time

Manitoba: 38%

Canada: 55%

MANITOBA VIOLENT CRIME OUTCOMES

-- Guilty verdict

Sexual assault: 31%

Major non-sexual assaults: 51%

-- Charges dropped

Sexual assault: 67%

Major non-sexual assaults: 47%

-- No jail time in sentence

Sexual assault: 18%

Major non-sexual assault: 5%

Republished from the Winnipeg Free Press print edition November 1, 2011 A3