Justice Dewar: Rape is inconsiderate

I read about this incident and my jaw dropped. I scrambled to other news outlets to confirm that this had actually happened. I’m dumbfounded. But first, the story.

According to the National Post, back in 2006, Kenneth Rhodes and a male friend met two women outside a bar. It was summer and both women were wearing tube tops with high heels. Apparently, the women spoke of going swimming in a nearby lake even though neither one of them had a bathing suit.

"I wasn’t dressed like a skank. I was like 20 years old, wearing a tube top. It was summer," said the victim who cannot be identified as she is the victim of a sexual assault.

The foursome left the parking lot in a vehicle, headed into the woods, court was told. Rhodes began making sexual advances toward the victim, who initially rejected him but later returned his kisses.

"I didn’t like the guy. He was beyond creepy, a real pervert, " she said Thursday. "He deserves to be behind bars for what he did. " She had asked her friend to stop the car to let her out because she no longer wanted to be near Rhodes. Unfortunately, he also exited as the other two drove away, leaving them alone together on the highway.

The CBC reported on the next part of the story:

The woman said she went into the bushes off the road to urinate and the man followed her in.

"I wanted out of there and he wouldn’t stop," she said about the attack, which left her covered in bruises.

Justice Robert Dewar

The judge in the case is in hot water now over remarks he made during the sentencing of Kenneth Rhodes. Dewar made mention of the women wearing no bras (you don’t wear a bra with a tube top), of the women talking about going swimming even though they didn’t have bathing suits, of wearing high heels and having "plenty of makeup". Judge Dewar described Rhodes as a “clumsy Don Juan” but said the circumstances were "inviting" and that "Sex was in the air." He concluded by saying, "This is a case of misunderstanding signals and inconsiderate behaviour."

The Crown was seeking a three-year jail term but Dewar spared Rhodes jail time and gave him a two-year conditional sentence allowing him to remain free in the community.

Response

The CBC spoke with Lorraine Parrington, who co-ordinates the sexual assault crisis program at Klinic, a community health centre in Winnipeg. She said

Fewer than 10 per cent of sexual assault cases are actually reported and Parrington worries Dewar’s comments will discourage future victims from coming forward.

"I’d like to say I was shocked. Unfortunately, I’m not after doing this work for lots of years," she said. "But I was appalled. I was outraged. I was disheartened."

Men have to learn women can change their minds, and no, at any point in an encounter, means no, she said.

"People have a right to change their mind. If I decide that I want to be engaged in certain sexual behaviour with somebody I can do that and I’m allowed to say, ‘Stop, I don’t want to do it any more.’ That needs to be respected."

Rally

On Friday, February 25, 2011, there was a rally of about 100 people at the Manitoba Law Courts Building both criticizing Justice Dewar and calling for his resignation. One placard carried the telling message, "No such thing as implied consent".

Final Word

Christine Blatchford in an revealing article points out that three years is supposed to be the starting point for judges in determining sentences for major sexual assault. She also notes that parliament removed from judges in 2007 any power to grant conditional sentences for any sexual assault. This incident happened, however in 2006.

Ms. Blatchford is talking about the law, the facts. I just have comments.

"Inviting circumstances" may explain what happened, but they don’t justify what happened. No means no. There is no such thing as implied consent as only yes means yes. As Lorraine Parrington so aptly points out, everyone is allowed to change their mind.

The judge’s mentioning of what the women were wearing is inexcusable. I don’t care if the woman was wearing a Madonna/Lady Gaga cone bra with crotchless edible panties; no means no. The word skank doesn’t come up at all.

The judge said that "Sex was in the air." "Money is in the air" every time I buy a lottery ticket but that doesn’t mean I’m getting any.

The judge said that "This is a case of misunderstanding signals." Let’s see now: struggling woman, repeated cries of "No", must use force to successfully hold her down, cause bruising. The judge is right. I can see that somebody would be completely baffled by these signals… if he was an utter moron.

The judge said that "This is a case of inconsiderate behaviour." I have to tip my hat at the perspicacity of Justice Dewar as yes, rape is "inconsiderate".

At the end of the day, I just have to shake my head. It is unfathomable what Justice Dewar was thinking when he opened his mouth but considering the flak in the media and the rally at the Manitoba Law Courts Building, I am confident others higher up the ladder are going to be taking a peek at this one.

References

The National Post – Feb 25, 2011

‘No woman asks to be raped’: Victim slams judge’s decision by Mike McIntyre

CBC – Feb 25/2011

Judge’s sex-assault comments spark rally

The National Post – Feb 24, 2011

Joe O’Connor: Do a tube top and high heels say, ‘Go ahead, rape me?’

So, there you have it: rape isn’t rape, even when it is. No doesn’t really mean no. And tight tops, by gum, they mean she wants IT. Bad. That she is dying for IT. That she is sending a signal to you, guys.

And that forcing her to have sex with you is “inconsiderate behaviour”, nothing more.

Justice Dewar said his aim wasn’t to blame the victim. What was it then? To send a message to men that raping a woman in a tube top because she gives you a suggestive wink is all part of the courtship process?

The Globe and Mail – Feb 24/2011

Manitoba judge is dead wrong in rape case by Christie Blatchford

[The case called R v Sandercock] famously, and controversially it appears, set three years as the starting point that judges should use in determining sentences for major sexual assault – that is, non-consensual vaginal intercourse and other equally serious sexual offences.

Among the common-sense conclusions from that three-member panel, all men, was this: “It is surely not provocation, for example, simply to be a woman, or to be attractive, or to be prettily attired.”

…

“If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.”

Parliament has.

In 2007, it removed from judges any power to grant conditional sentences for any sexual assault or other serious personal injury offence.

In other words, the sentence Judge Dewar handed Kenneth Rhodes, in that smarmy language, is now forbidden.

Mr. Rhodes had the good luck to rape – er, behave inconsiderately toward – his victim by a dark highway outside Thompson in 2006, the year before the law took effect.

The Winnipeg Free Press – Feb 25/2011

Judicial body reviewing complaints against judge

A body that investigates judicial misconduct confirmed this afternoon that it will be reviewing complaints against Manitoba Queen’s Bench Judge Robert Dewar.

And the province of Manitoba announced it will file a formal complaint about the federal judge with the Canadian Judicial Council.

The council, which hears complaints of judicial misconduct, confirmed today that it has already received "several" complaints about the conduct of Dewar.

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