The Clumsy Judge!
Tuesday, October 16, 2015
A man who was at the centre of a controversial Manitoba sexual assault case in which a trial judge said the victim may have been partially responsible for what happened has lost his bid for a new trial.
Kenneth Rhodes, who is 44, was given a three-year prison term after he was convicted last year of assaulting a young woman in the northern city of Thompson.
Rhodes asked the Manitoba Court of Appeal for a new trial on the grounds of incompetent legal representation, but the panel turned down his application in a written decision released Thursday.
Rhodes got a conditional discharge after he was found guilty at his first trial in 2011, when Justice Robert Dewar said during sentencing that the accused was a "clumsy Don Juan" who may have misunderstood the victim.
A widespread outcry over that comment ended with an investigation by the Canadian Judicial Council, which recommended no formal disciplinary action against the judge.
The Crown appealed Dewar's decision and a new hearing was ordered, which led to the same verdict but a much stronger sentence.
Rhodes maintained his innocence and recently told the appeal court he didn't get a fair hearing at last year's trial because his lawyer at the time failed to adequately cross-examine the victim, including getting her to address what he believed were conflicting statements about what happened.
"The factual foundation does not support a finding that there was a probable miscarriage of justice in this case," said Justice Holly Beard. She said a different approach during the trial would likely not have changed the outcome, and Rhodes would have still been convicted.
Rhodes had claimed any sexual activity with the woman during the 2006 incident was consensual. The trial judge found his version of events wasn't credible.
During the 2011 trial, Dewar noted that the victim wore a tube top, high heels and plenty of makeup and cited her flirtatious behaviour.
"Sex was in the air," he said before rejecting the Crown's bid for a three-year prison term.
Politicians of all stripes joined student and feminist groups and those who work with sexual-assault victims in decrying the judge's comments. Many said they feared the remarks would deter other victims from coming forward.
The Canadian Judicial Council called Dewar's conduct an "isolated incident." It noted Dewar agreed his comments were "totally inappropriate" and had apologized directly to the victim.