A Manitoba judge has decided not to send a man to jail for sexually assaulting a woman because the victim was wearing heavy makeup and "wanted to party" on the night of the attack, the Winnipeg Free Press is reporting.
In a judgment that one prosecutor said could have implications for public confidence in the system, Judge Robert Dewar sentenced Kenneth Rhodes to a two-year conditional sentence outside of prison, accepting that he might not have understood that the woman did not want to have sex with him.
In the 2006 incident, Mr. Rhodes and a friend met the 26-year-old victim and her friend outside of a bar and headed off into the woods outside of Thompson, a town of 13,000 about 760 kilometres north of Winnipeg, the paper said. He and the victim kissed; later, when they were alone, Mr. Rhodes had sexual intercourse with her without her consent at the side of the highway.
At trial, Mr. Rhodes maintained that he believed the woman had consented.
Judge Dewar listed several reasons for this misinterpretation, including that the victim and her friend were wearing tube tops, high heels and makeup; that the two had implied they might want to go skinny-dipping in a lake nearby and that the circumstances of their encounter with Mr. Rhodes and his friend were "inviting."
"This is a different case than one where there is no perceived invitation," the Free Press quoted the judge as saying. "This is a case of misunderstood signals and inconsiderate behaviour."
Crown attorney Sheila Seesahai, however, countered that the victim was at the man's mercy and warned of broader implications for the sentence.
"This sentencing will raise a number of issues relating to public confidence in the sentencing process," she said in court. "This is a very serious rape case. The harm to the victim can't be underestimated."
In a previous impact statement, the victim said that she still bears a scar on her knee from that night.
The prosecution had asked for a three-year prison sentence.