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Canada In Manitoba, sexual assault means having to say you're 'sorry'

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.

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When a précis 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.

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"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."

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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."

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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.

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