Attitudes toward sexual assault and rape have come a long way in Canada, where, until 1983, raping a spouse was not a criminal offence. Within a decade, courts had ruled that guilt or innocence to an accusation of sexual assault turned on the element of consent to sex, and it was the accused's responsibility to establish consent was given.
The remarks a Manitoba judge expressed in convicting a Thompson man -- the "clumsy Don Juan" -- of sexually assaulting a young woman indicate that not only is there far to go yet, but the law on consent is not clearly understood even within the courts. Both the Crown and the defence are appealing the case. Both believe the judge made serious errors; the former is seeking a new trial and the latter, insisting Kenneth Rhodes reasonably believed consent was given, wants an acquittal.
The Women's Legal Education and Action Fund is arguing the conviction should be upheld and that the court must recognize there are systemic discriminatory issues and attitudes still at play in sexual assault cases that lead jurists to blame victims. It is well-recognized that women and girls are fearful of reporting sexual assault because of the stigmatization, generally, and because they fear not being believed and being blamed, fears that often are justified. The advice by a Toronto officer recently that one way female students could avoid being attacked was to not dress like a slut reinforces victims' fears.
The Appeal Court's review of Justice Robert Dewar's remarks and decision, both in convicting and sentencing Rhodes, is critical to the law, the public's understanding of the issue of consent and the treatment of sexual assault in Manitoba.
LEAF noted Statistics Canada's compilation of crime data shows that Manitoba has Canada's lowest conviction rate in sexual assaults, tied with Nova Scotia at 31 per cent in 2010. Alberta sits at 32 per cent, but all other provinces have discernibly higher rates, including Saskatchewan, at 48 per cent. No province comes close to Manitoba's rate of sexual assault charges being stayed.
There is no good analysis of why Manitoba sticks out like a sore thumb on this measurement. LEAF believes the old attitudes toward rape and sexual assault and the role of the victim, particularly with aboriginal women, are alive and well in this province. Judge Dewar's comments feed that fire.
Equally troubling is the fact Winnipeg Police Service statistics show while more victims are reporting to police, fewer and fewer sexual assault complaints are being "cleared," either resulting in charges or otherwise being resolved. In the late 1990s, 60 per cent of complaints were resolved. The rate has fallen fairly steadily. In 2008-09, it stood at 30 per cent.
Society slowly is accepting that no means no and that consent is required. Why it is that in Manitoba it is much less likely for a sexual assault charge to end in conviction? That fact encourages people to draw conclusions, many that will be unfair to all involved. Much work has been done to support victims, but there remains huge reluctance to report rape and the best efforts of prosecutors are thwarted if a complainant does not testify. Manitoba's low conviction rate sticks out like a red flag. It deserves the attention not just of Appeal Court judges but of police, prosecutors and the justice department's analysts.