Manitoba Court of Queen’s Bench Justice Robert Dewar’s decision to give Kenneth Rhodes a conditional sentence for raping a woman in Thompson in 2006 has sparked international controversy.

His decision, whereby he characterized Rhodes as a “clumsy Don Juan” overcome by inviting circumstances, has prompted his removal from any further sexual assault cases, an appeal by the Crown, complaints to the Canadian Judicial Council and, most recently, his removal from a Winnipeg manslaughter case.

However, it was the inclusion of the victim’s attire, behaviour and level of intoxication in sentencing her attacker that has left the most indelible mark on the many women who have survived the trauma and violence of rape. 

“His (Dewar’s) message is that girls can’t be feminine, that girls can’t be comfortable with their gender and their sexuality without asking to be raped,” said Sherrie-Lee Chiarot, a 20-year-old behavioural science student at Winnipeg’s Booth University College.

Although originally from Ontario, Chiarot attended high school in rural Manitoba.

On a trip back to her Ontario hometown when she was 14 years old, she was sexually assaulted by a 19-year-old man – a trusted family friend whom she had known for several years.

“We were watching a movie, and apparently because I was sitting on the bed my body language was asking for it,” said Chiarot. “I was told, by him, for multiple years after, that because I was on his bed it was my fault.”

It wasn’t until four years later, when she started attending college, that Chiarot realized the rape was never her fault.

“I will forever have to live a life of distrust,” she said, adding that she finds it difficult to form lasting relationships and is still plagued by emotional triggers, such as the attacker’s name.

Chiarot never took her attacker to court because she had no physical evidence of the crime and did not want to relive the experience, minute by minute, in a formal court of law.

She believes that Justice Dewar has done a great disservice to Canadian women by further dissuading rape survivors from coming forward.

“(His decision) takes everything the justice system has done around rape back multiple years,” she said.

Moving backward

Justice Dewar sentenced Kenneth Rhodes to a two-year conditional sentence despite the Crown’s insistence that he deserved three years of jail time.

As of 2007, three years in jail is the mandatory minimum sentence legislated by Parliament for cases of serious sexual assault.

However, because the crime took place in 2006, Justice Dewar was able to accept the Crown’s evidence and convict Rhodes, while still avoiding the mandatory minimum sentence.

“Protection of society, I do not believe, is advanced one iota by putting Mr. Rhodes in jail,” the judge argued in sentencing, an audio version of which is available to the public at the Manitoba Law Courts building in Winnipeg.

“ I will forever have to live a life of distrust.

Sherrie-Lee Chiarot, rape survivor

“Here, there were no threats knowingly given, there was no violence knowingly imposed. Mr. Rhodes, in his testimony, had said that he wasn’t out there to hurt anyone,” Justice Dewar 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. I don’t condone it, but it simply does not fit the archetypal cases cited.”

Among the “archetypal cases” cited was R v. Sandercock from the Alberta Court of Appeal in 1985.

Sandercock established three years of jail time as the “guideline” for serious sexual assault “assuming a mature accused with previous good character and no criminal record.”

Rhodes was of previously good character and had no criminal record, both of which were considered by Justice Dewar in sentencing.

Allison Fenske, a lawyer at Winnipeg law firm Thompson Dorfman Sweatman LLP, believes that Dewar not only ignored current practice but also evaded the Sandercock precedent in granting Rhodes a lenient sentence.

“There is a long-established starting point of a three-year minimum imprisonment for crimes of serious sexual assault and that Alberta precedent has been recognized by our own Manitoba Court of Appeal,” she said.

“Really outdated myths and stereotypes about sexual assault, about victims and about sexual abusers are being relied on in creating that picture of what an archetypal rape looks like.”

Sheila Seesahai, the Crown prosecutor in the Rhodes case, could not speak to The Uniter because she is currently pursuing an appeal of Dewar’s decision to the Manitoba Court of Appeal.

In arguing for a three-year jail sentence, Seesahai relied heavily on the precedent set in Sandercock.

Shannon Sampert, a politics professor at the University of Winnipeg and a long-time women’s rights advocate, agrees with Fenske.

“This is textbook sexual violence. There was nothing in there that was unusual or unclear. This really smacks of this judge’s inexperience,” she said.

Derek Coggan, the defence attorney in the Rhodes case, was unavailable for comment before press time.

Published in Volume 65, Number 22 of The Uniter (March 10, 2011)