Winnipeg Free Press - PRINT EDITION

Rape-case 'Don Juan' wins retrial

Judge's 'sex-was-in-the-air' view sparked firestorm of controversy

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Manitoba's highest court has ordered a new trial in a controversial rape case that sparked national outrage and put a judge's remarks under fire.

Kenneth Rhodes learned Wednesday his bid to overturn his sexual assault conviction was successful. The three Appeal Court judges said they would be issuing written reasons for their decision at a later date.

Rhodes claimed he was wrongfully convicted of a crime and the guilty finding by Queen's Bench Justice Robert Dewar "was unreasonable and unsupported by the evidence."

"The judge erred in law in misapplying the test for honest but mistaken belief in consent," his lawyer argued in the appeal. Crown attorney Ami Kotler agreed a new trial was necessary, conceding the circumstances around the case speak to an "issue of public confidence."

Rhodes pleaded not guilty at his trial last winter in Thompson, on the basis he thought the woman had consented to sex. Dewar rejected his defence, but said aspects of it could be considered in sentencing.

Defence lawyer Josh Weinstein told the Appeal Court Dewar did not properly apply the "reasonable doubt" principles set out by the Supreme Court in cases such as this, where conflicting evidence by an accused and victim is presented. Weinstein said only a new trial can address issues of fairness for his client.

At a sentencing hearing, Dewar suggested the victim's attire and flirtatious behaviour were partly to blame for the attack, which involved forced intercourse. The judge called Rhodes, a "clumsy Don Juan" and noted the victim wore a tube top, high heels and plenty of makeup.

"Sex was in the air," Dewar said. Rhodes was given a conditional sentence after Dewar rejected the Crown's bid for a three-year prison term.

Dewar's comments immediately came under attack after they were reported in the Free Press. Politicians of all stripes joined student and feminist groups and those who work with sexual assault victims in decrying the comments. Many said they feared Dewar's remarks would deter other victims from coming forward in the future.

The Canadian Judicial Council, which has authority over more than 1,100 federally appointed judges, received "several" complaints about Dewar's handling of the case and launched an investigation.

The council decided no formal discipline was required, calling Dewar's conduct an "isolated incident."

It noted Dewar agreed his comments were "totally inappropriate" and he had apologized directly to the victim "for the hurt she must have experienced from my comments." He has also taken gender-equity counselling and has resumed his normal duties.

Rhodes and a friend met the woman and her girlfriend earlier that night outside a bar under what the judge called "inviting circumstances."

The women spoke of going swimming in a nearby lake that night, "notwithstanding the fact neither of them had a bathing suit."

The foursome left the parking lot in a vehicle and headed into the woods, court was told. Rhodes began making sexual advances toward the victim, who initially rejected him but later returned his kisses. Rhodes then forced himself on her once they were alone, according to Dewar's finding of facts.

University of Winnipeg politics professor Shannon Sampert said Wednesday this is the collateral damage that occurs when there are poorly trained judges in the court system.

"The victim in this case gets to relive her experiences once again in a new trial, hoping that this judge won't require gender-sensitivity training," Sampert said.

She said surveys repeatedly show one of the primary reasons women don't report being raped is they fear they will be victimized again by the justice system.

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

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