Wearing a Tube Top Does Not Equal Consent

In a disgraceful judgment by the provincial court of Manitoba, Canada, Justice Robert Dewar allowed a convicted rapist to walk away with nothing but a curfew and a mandatory letter of apology to his victim. The reason? She was wearing a tube top, high heels and make-up the night of the rape–and she was drinking alcohol.

Keep in mind that the man in this case was already convicted. The “did it happen?” factor was not under consideration: This judge softened the sentencing on the grounds that the rape was acceptable because the survivor was intoxicated and dressed “suggestively.”

Dewar called the rapist, Kenneth Rhodes, a “clumsy Don Juan” who behaved in an “inconsiderate” manner after receiving “[unintentional] signals … that sex was in the air.”

Is it just me, or is it not clear that when a woman refuses to kiss you back and you have to force yourself on her under a darkened highway, she’s absolutely not giving you the go-ahead for sex?

The judge also decided that Rhodes is not at risk to re-offend, though it’s unclear what evidence that judgment is based on. Considering at least one-quarter of convicted rapists re-offend–along with two-thirds of never-convicted rapists–I’d say there’s a pretty healthy risk factor.

Under question, apparently, was the “moral blameworthiness” of the survivor. Since both Rhodes and the victim were drinking, says defense attorney Derek Coggan, their ability to send and receive sexual signals was compromised. “She had a very different understanding of what was in the accused’s mind than he did,” Coggan said. Here’s an idea: Don’t have sex with a person so drunk they can’t say yes. In fact, the Criminal Code of Canada makes it easy for would-be rapists to understand: The inability to consent (on account of intoxication, for example) constitutes a lack of consent.

If this case makes it to the Supreme Court of Canada, and I hope it does, there are strong precedents available to support the survivor [PDF]. A 1999 Supreme Court decision stated:

A belief by the accused that the complainant in her own mind wanted him to touch her, but did not express that desire, is not a defense.

A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake in law and provides no defense.

It’s time for a mantra of “Yes Means Yes!”–in life and in law.

Photo from Flickr user ldhren under Creative Commons 2.0.

Comments

  1. Outrageous, absolutely disgusting and outrageous that a court would let a rapist walk away with something like this.

  2. nikitabluewriter says:

    Unbelievable. I feel like puking… in this judge's breakfast cereal.

  3. onifashion says:

    Are you serious right now?! WTF?? That judge should be demoted.

  4. How in the world was he given the right to judge?

  5. If you are outraged by this judge's comments, you can make a complaint to the Canadian Judicial Council: http://www.cjc-ccm.gc.ca/english/conduct_en.asp?s

    Denwar's comments are already under review and the more complaints explaining why his comments were problematic, the better. http://www.cbc.ca/news/canada/manitoba/story/2011

  6. this is SO NOT OKAY!!!

  7. Ladyjustice says:

    Are we a country that blames the victim? I certainly hope not. That is what the fundamentalists do and part of what people are literally dying for in the middle east. As a Canadian I am ashamed of this judge and I hope that he not only loses his job but is also disbarred. The appeal will be a no-brainer for the prosecution. My heart goes out to the victim and I hope justice is applied as it should be. We had a feminist movement in the world that necessary to correct blaming women for the actions of men, among many other issues. This judge is a caveman!

  8. This is appalling, and my concern is also that many people (not just judges) think this way. I have ‘friends’ who have expressed a similar viewpoint: “She was drunk so she was responsible.” I think there needs to be a huge cultural shift in attitudes among the whole population. We are indoctrinated with these rape myths at an early age. As feminists, we must keep raising awareness and campaigning.

  9. http://www.windsorstar.com/news/Judge+Dewar/43638

    " People around the country were so angry they protested the judge's comments and demanded that he be sanctioned.
    The province has already made its position clear. Jennifer Howard, Manitoba's minister for the Status of Women, said it was important to send a message to victims of sexual assault that "they should come forward, that they should feel protected by the law."
    Indeed they should, and Dewar has failed miserably. We are confident the judicial council will deliver a strong reprimand, but the judge should not wait for the results of the investigation. He should step down immediately."

    The fact that "people" around the country are said to have united over this issue rather than solely women's rights advocates gives me hope. I wish this attitude would catch and spread south.

  10. William Links says:

    this judge needs to be disbarred right now. PERIOD.

  11. When the bank robber stated
    that the bank had provoked him into robbing them
    with all that money they had
    his sentence was changed from six to four years.
    When he then stated that
    the bank clerks had not fought back
    the sentence was changed from four to two years
    (since he could assume the assent of the clerks from their silence).
    Eventually he also mentioned that
    he had done business
    with this bank
    on several occasions
    before the robbery
    the judges found him not guilty.
    Why should they judge this case differently
    from any case of rape?

    (English adaptation of a German text by the women's office of the University of Bochum)

    • That's comparing apples and oranges. Dollars are not people. That's like saying stealing money is the same as kidnapping children, it's not. That's the difference. Also, keep in mind, if a victim is too drunk to talk – it means NO!

  12. Kayla Pate says:

    This is disgusting, will something be done or will this stand?

  13. Mathieu says:

    You write: "Considering at least one-quarter of convicted rapists re-offend"… that surprised me, so I checked. According to your source (http://www.cbc.ca/news/background/crime), the numbers are:

    "6.2 per cent of all sexual offenders and 14.6 per cent of repeat offenders committed a new sexual offence"

    Or perhaps I've missed something. Anyway, minor point…

    • Boba Fett says:

      Depends on the sex offense, peeing in public is a sex offense in the US, so is sex at 16 years old, these are not violent offenses, rape and sexual assault are, but statistics don't always distinguish between them, and so you have to consider that those stats are inaccurate because of that. It also depends on whether the offender has been convicted of the crime or not. Convicted sex offenders are required to register on a sex offender database, where they live, if they move, etc. Most will not reoffend because of that fact. Offenders that have not been convicted have a much higher rate of recidivism, they haven't been caught yet or they've been let off the hook and therefore are free to offend again, without being under the watchful eye of the law (or neighbors). Regardless, if you consider that 6 out of 100 (low percent according to cbc.ca) that's 106 victims…. minimum. I don't know about you, but that's 106 too many, so no, it's not a minor point.

  14. so if a guy wore shorts without a shirt,his chest waxed,and a beer in his hand he's allowed to be sexually attacked as well?

  15. Mathieu says:

    Ok, back after reading you other source. Really interesting:
    http://www.feministe.us/blog/archives/2010/03/25/

    It quotes two studies on "self-reported" rapists, i.e. they were never caught. Around two-thirds of them report attempting/completing multiple rapes (on average they report an eerie 6 attemps/rapes).

    So it seems that there is a big difference between rapists that get caught/convicted and those who don't. When convicted, only 6% of first-offence rapists become recidivists, while it is 60-70% for uncaught rapists.

    That suggests that to deter rape, the message the Court should send is: "It is unacceptable, there is no excuse… and you will get caught!". Instead, judge Dewar's comments are trivialising his crime… arg!

    Ps: The question remains: is jail time necessary to stop a first-offence rapist is his track?… or is a conviction enough (plus say, as in the current case: 24-hour curfew, name on the sexual offender registry, and letter of apology (!))

    If jail time is necessary, then the sentence is a second error in judgement. Perhaps he felt the proof was too thin to warrant jail time (is that within a judge's power to decide?).

    In any case, I hope the judge is forced to write a letter of apology! Or perhaps meet with a gorilla…
    http://www.youtube.com/watch?v=_2fghLXlBh0

    Pps: According to the study above, most rapes are more "hidden" than the current case: the rapists knows its victim and he does not use force to subdue her (intoxicants rather).

  16. How in the world did this judge ever become a judge? What law school did he attend? One in the Middle East that taught Sharia law?

  17. wow what is wrong with this world, no is no that does not give the guy right to think he can have sex.
    You are standing in front of a man naked, and he wants to have sex and you say No that is it end of decsion.

  18. So what's the right verdict here?

    The guy was put on the sex offender registry list with a 2 year curfew for having sex with someone while they were both clearly drunk and absolutely gone out of their minds, willing or not willing. Both of their lives are fucked up.

    How will putting him in jail solve anything? Putting him an environment where for 3 years he stews and hates women and doesn't have any experiences other than violence isn't exactly going to make him a tamer, more caring person towards women you know.

    Everyone seems to be in disbelief that "The judge should be disbarred" – What exactly do you think the sentence should be? What verdict could this judge have handed out that would benefit this woman?

    • The correct verdict, Scott, is one that punishes the perpetrator for the crime he committed. The benefit to the woman, and to society in general, is that justice was served.

      Also, he was not put on the sex offender registry list with a 2 year curfew "for having sex with someone." He was put on the sex offender registry list with a 2 year curfew for RAPING someone. See the difference? I agree that incarceration of violent criminals has serious problems, many of which have to do with prisons being horrible environments filled with more violence. However, that is a problem of the prison system in general, and has nothing to do with the fact that this man is a convicted rapist.

    • I agree…i am a firm believer that No means No..but at some point women have to be willing to take some of the blame…they can't just have a free pass to get drunk, dress half naked, give mixed signals, hit the brakes at the last minute and expect every guy to act like a perfect understanding gentleman…not to mention the ability to simply "yell" rape because you didn't like what happened during your drunken stupor the night before is often overlooked. I'm quite sure this well educated judge didn't just decide for the hell of it to make this decision..

      • Vaudree says:

        Jane Doe got out of the car to get away from this guy and he followed her out of the car.

        People who raped should have to pay for it – whether their victims are male or female.

      • Tito, great to see you are taking so much on “faith”. The judge’s sentencing remarks (calling the offender a “clumsy Don Juan” and “insensitive” to the victim’s indications of no, as well as mentioning that the victim wore make up (OMG!) and suggested to a group of people to go swimming even though they didn’t OMG have bathing suits!) seem interesting because the offender met the criteria to be convicted to sexual assault. THIS judge convicted the offender. The victim had injuries and following the assault ran, pantless, through the woods to the highway to look for help. Years after the assault, she is afraid to leave her house alone. So before you go and assume something about a victim EVEN WHEN it was found by a court of law that she WAS sexually assaulted, go and learn something about it.

    • I imagine the victim would have appreciated a sentencing that didn’t call her rapist “insensitive”, or “a clumsy Don Juan” who “misread her signals”. Or a judge that didn’t mention that she was wearing heels and make up. Rapists don’t get much time here in Canada, and to be honest, I am not a big fan of locking up everyone (although I do make an exception for rapists). For me and a lot of other people it was the justification/reasoning behind the judge’s decision.

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