It is inconceivable that a judge today would raise a woman's attire -- tube tops, high heels and makeup -- as a mitigating circumstance in sentencing a man convicted of rape. The message that Queen's Bench Justice Robert Dewar has sent in giving a conditional sentence to Kenneth Rhodes is both mixed and dangerous.
In 1985, the Alberta Court of Appeal, in a skilful description of the sinister impact of sexual assault, defined a major sexual assault as one in which a victim is forced into a sexual activity likely to psychologically harm that person. The court set a sentencing "starting point" -- three years imprisonment -- for someone of previously good behaviour and without previous convictions. In line with that, the Crown attorney called for a jail term of at least three years for the Thompson man.
Judge Dewar noted he did not want to be seen as blaming the victim, but managed to do just that, citing her attire, the "sex in the air" atmosphere of the evening, concluding that the woman and her girlfriend made it "publicly known they wanted to party." After convicting Rhodes of rape, the judge then mitigated Rhodes' blameworthiness, finding that he misread the signals, despite the fact the woman said "no" to his advances beyond kissing.
That the sentence fell outside long-established precedent is for the Manitoba Court of Appeal to address, and it ought to be appealed. A more useful role for the Appeal Court, however, is to set right the real damage Judge Dewar has done by dragging up the archaic notion that consent to sex is implied by the clothes a woman wears.