3.11.2011

in 21st century canada, judges are still blaming rape survivors for being raped

I saw headlines from this story when it first broke, but it took a while to muster the nerve to click. I post now without adequate comment; I'm too nauseated to write anything.
In Manitoba, sexual assault means having to say you're 'sorry'
By Christie Blatchford

Along with no jail time, judge sentences defendant to write his victim a letter with "a fulsome apology"

She was just 26, and is petite. She was intoxicated and vulnerable. She was raped, briefly penetrated anally, and subjected to oral sex. She was so afraid of her attacker that, by the side of a highway in the middle of the night, she fled, pant-less, and ran through dark woods, trying to flag down help.

And, most chilling, the young woman feared her assailant might kill her.

These are the facts, as they were established in court, in the sex assault case that last month saw Kenneth Rhodes of Thompson, Man., given a conditional sentence - no jail time - of two years less a day.

When a precis of the presiding judge's remarks hit the media a week after the Feb. 18 sentencing, it sparked a firestorm.

By month's end, the province filed a complaint with the Canadian Judicial Council, and Judge Robert Dewar of the Court of Queen's Bench was temporarily prohibited from handling cases of a sexual nature.

But a transcript of the proceeding received on Thursday by The Globe and Mail reveals the matter as even more troubling than it may first have appeared.

Judge Dewar convicted Mr. Rhodes, who at 40 is much older and larger than the victim, of sexual assault.

As part of that process, he made certain findings of fact, among them that the woman had asked Mr. Rhodes if he was planning to kill her; that when she complained of pain during a digital assault, he told her that it "would only hurt for a little while," and that when she walked with Mr. Rhodes, to his eye allegedly willingly, she had picked up a stick (the inference is to protect herself) and gone with him only because she was afraid.

And, as senior Crown attorney David Gray reminded Judge Dewar that day, when convicting Mr. Rhodes, the judge himself had found "three independent indicia" that the woman had rebuffed his advances - once in the back seat of a car as they were driven by friends from a bar parking lot to a nearby lake, a "certain coldness" to her demeanour, and that she'd "gone off into the bush."

Yet Judge Dewar appeared to have difficulty getting his head around the fact that the victim didn't consent to have sex with Mr. Rhodes.

"And then the no," the judge said at one point, "she says no when?"

"When she says no by saying - that hurts," Mr. Gray replied.

"Okay," said the judge. "That's the time."

Judge Dewar quoted his own reasons at length when finally sentencing Mr. Rhodes.

"It must be acknowledged that the parties met in what can only be described as 'inviting' circumstances. At 2:30 on a summer morning, two young women, one of which was dressed in a tube top without a bra and jeans and both of whom were made up and wore high heels in a parking lot outside a bar, made their intentions publicly known that they wanted to party," he read aloud from his conviction decision.

Later, the judge said, when Mr. Rhodes saw his friend making out with the victim's friend, it "could further heighten the anticipation in the mind of the accused that further sexual activity could well occur." As he inimitably put it, to Mr. Rhodes, it seemed "...the door was then not closed to further sexual activity... he honestly believed that the increased sexual activity was still a possibility."

Then, in an astonishing apparent reference to the fact Mr. Rhodes had digitally penetrated the woman, the judge said, "Even his sexual activity, bizarre as it was and as hurtful as it was to the complainant, cannot be said to be only self-gratification. It had the characteristics of a clumsy Don Juan."

Especially jarring is how defence lawyer Derek Coggan and the judge appeared to fail to grasp what the Alberta Court of Appeal has called the violence inherent in any major sex assault, this despite the fact that Crown Sheila Seesahai argued this very point forcefully.

"It's not as though he was violent towards her except for the unwanted sexual act," Mr. Coggan said. "He did not raise a fist to her. He did not scream at her. He did not yell at her. He did nothing - her fear of him was not brought forth by his actions."

Perhaps the young woman's fear was also ... just in the air that night.

Why, Mr. Coggan said, Mr. Rhodes even thoughtfully "picked up her pants and her shoes and held onto them while he waited for her to come out of the bush."

The judge concluded, "Make no mistake Mr. Rhodes' failure to make inquiries warrants sanctions. Apart from anything else, women deserve respect and consideration. And when strangers are involved, greater care must be exercised in showing that consideration because there is no track record of familiarity on which to gauge the consent."

He ruled out a jail term, saying that prison "in my view, for non-thinking behaviour tends to stifle constructive change rather than encourage it." He noted that by being sentenced to house arrest (but for work), Mr. Rhodes would miss out on the freedom "to fish, to camp, to go out and visit."

The judge's sentence is well-known by now - a conditional sentence of two years less a day, with the usual mandatory bans and reporting conditions.

But what isn't is that Judge Dewar also ordered Mr. Rhodes to write his victim a letter with "a fulsome apology" for his conduct within 30 days of the appeal period expiring.

Yes, indeed. That's bound to smart.

More:

Rape victim 'inviting,' so no jail, Judge rules woman's clothes, conduct ease blame on attacker

Judge removed from cases "of a sexual nature"

Transcript of decision

9 comments:

allan said...

I wonder if Mr. Dewar has a daughter?

laura k said...

If he does, he may well believe if she wears a tube top and high heels and made known "her intentions to party" she is asking to be raped. And if has the bad lucked to be raped, he may blame her.

laura k said...

The part that I found most difficult to read is this:

Why, Mr. Coggan said, Mr. Rhodes even thoughtfully "picked up her pants and her shoes and held onto them while he waited for her to come out of the bush."

The man who raped me made a similar type of gesture or action.

This judge has been removed from sexual assault cases but I wonder if he's learned anything. Somehow I doubt it.

allan said...

That tube top paragraph from his decision reads like soft-core porn.

Matthias said...

"It's not as though he was violent towards her except for the unwanted sexual act," WTF? So the rape was not as bad because he did not beat her enough? This is almost incredible, but this judge actually gave that as a reason for his soft sentence?!

Northern Girl said...

Judge Dewar said the victim sent signals that "Sex was in the air" because of the way she dressed - wtf?

Welcome back to the dark ages.

Unbelievable!

impudent strumpet said...

In addition to all the obvious stuff, and in addition to the fact that using sartorial semiotics isn't appropriate (and in addition to the fact that sartorial semiotics aren't directed towards every single person in the general vicinity equally), the judge didn't even get his sartorial semiotics right!

People who habitually wear a bra will wear a bra (or some kind of underpinnings) when they are making any sort of effort with their appearance, including, but not limited to, an effort to look sexy. People who do not habitually wear a bra do not habitually wear a bra, so no conclusions can be drawn from it. The absence of a bra therefore indicates: a) lack of effort in one's appearance, b) a specific attempt to look UNsexy, or c) absolutely nothing.

Any garment that can be accurately described as a tube top is also a sign of lack of effort. Tube tops are grubbies. They're what you wear to mow the lawn or on the dock at the cottage. They're what you wear so you don't mess up your tan lines for your real clothes. The kinds of strapless tops people wear when they're trying to make an effort would be sold under a sign that says "strapless tops" or various other specialty names that I can look up but don't have memorized. The presence of a tube top is a specific indicator of lack of effort.

When a legal professional cites something as evidence or precedent, they have to get it right. That's essentially their whole job. A legal professional who looks at evidence or precedent and draws the complete opposite of the correct conclusion is incompetent.

Justice Dewar has looked at sartorial semiotics and drawn the complete opposite of the correct conclusion. If we accept his premise that sartorial semiotics are valid and viable evidence, then it follows that he is incompetent at his job and not qualified to rule on this case.

laura k said...

NY Times "public editor" responds to criticism of story about gang rape - portraying town's concern for ruined lives of the perpetrators, but not the 11-year-old victim - who, it was noted, wore makeup and dressed inappropriately for her age: link.

(PS Throw a stone and hit a story about 11y/o's dressed inappropriately for their age. It's not exactly unusual.)

Terrible story, trigger warning.

allan said...

One Times reader left this comment:

I have never read a story about any other kind of crime -- murder, larceny -- where so much attention was paid to the feelings of the criminals and the supposed "asking-for-it" behavior of the victim, and so little attention paid to the damage they had wrought.

When a gang runs into a convenience store and shoots up the place, we don't see stories about how badly those poor robbers are going to feel now, or about how the store was really asking for it, what with being open all night and dealing primarily in cash.

No, such reporting is unthinkable for any other crime. Rape is the only crime in the world where reporting goes this wrong.

I also would like readers to consider how impossible this sort of reporting would be had it been an 11 year old BOY who had been gang-raped by 18 men. Would we report that the boy was hanging around with those older men, dressing like a 20-something, and so on? Would that be reported, even if someone had said it to the reporter? Would we lament how those poor men would have to live with their gang-rape of that 11 year old boy for the rest of their lives?

***