The Media Failure on Dewar

Before I begin, I'd like to thank Melissa at Nothing in Winnipeg for the plug. It's much appreciated. Now onto the show.

So, for my first content post I thought about doing something small and simple, but decided instead on something long and complex. Might as well start with a bang.

Anyway, the transcript for the Rhodes case containing the comments made by Justice Dewar that have caused a national furor has been released, so I’ve decided to analyze that for my first post. From the beginning I’ve thought that there was something off about the story and how it was portrayed in the media, as the short quotes presented by the media seemed devoid of context. So, now we have the chance to see if my gut was right. (Warning, this is going to be a long post with much quoting).

Section 273.2 of the criminal code, which deals with consent, is mentioned a few times, so I’ll post s273.2:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Dewar’s sentencing rationale starts at after the recess on page 70, I will be focusing mainly on his rationale, as that's the controversial part.

First off, there’s some talk of deterrence and denunciation and the uniqueness of this case (it’s not archetypical). He establishes that 3 years is the general minimum in major sexual assaults on the bottom of page 72.

The reason he gave for his conviction is given on page 73:

My conviction in this case was based upon the notion that the accused took no steps, once he got to the highway, to be sure that what was about to happen was an activity that was mutually desired.  Some signals had been sent early, but they were not enough for the accused to conclude that the heightened sexual activity would be consensual, only that it was a possibility.  He acted at the side of the road without any further inquiry.  He took the lead and expected the complainant to follow.  He was not entitled to the benefit of the honest, but reasonable belief defence because he did not take reasonable steps to verify the consent.  Put another way, he was insensitive to what the complainant wanted and Section 273.2 of the Criminal Code mandated a finding of guilt.  His lack of reasonable inquiry deemed a guilty mind whatever he was truly thinking.

We can see that Dewar clearly believes that the sexual “signals” of earlier were not a sign of consent, only a sign of a possibility of consent (of which there is a difference, one that is important in this case). Rhodes was convicted because he did not take reasonable steps to verify consent. So, the accusations against Rhodes that he believes a woman’s manner or dress means she deserves to be raped, or that they imply consent, or what have you are false. He clearly states that consent must be obtained and can not be implied by “signals”.

We can also see that Rhodes was convicted not for engaging in sex against the stated wishes of the victim, but rather because he had not taken the proper steps to ensure that the victim consented.

Page 73-75 have him relating what he had said earlier in regards to the mistaken belief defence, this is where many of the quotes the media carried concerning clothing, partying, sex in the air, etc. were from:

I say this because the complainant herself testified that on the gravel road between the lake and highway she gave some indication of willingness to engage in sexual activity by returning the kisses of the accused. 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 publically known that they wanted to party.  Then the women, in particular S.M., made the suggestion that the group should go swimming, notwithstanding that not one of them had any bathing suit. 

These facts could fairly conjure up, in the mind of the accused, that getting together with these women had potential that sexual activity lay ahead.  Then to see Mr. Lederhous and S.M. “making out” at the stop at the Jonas Road could further heighten the anticipation in the mind of the accused that further sexual activity could well occur.  And although the complainant had rebuffed his advances in the backseat of the car, her demonstrated willingness on the gravel road to hold onto him and kiss him and pretend to like him could surely leave an impression that the door was then not closed to further sexual activity.  This is especially so since there is no evidence before the group got out of the car by the lake there were any threats or excessive advances made by the accused.  

By the time he was walking hand in hand with the complainant up the gravel road to the highway, I find that the accused was not aware of the complainant’s fear of him and that he honestly believed that the increased sexual activity was still a possibility.  I do not accept that the accused had formed any intention at this time to impose his desires upon the complainant, since it would have made more sense to impose them in the privacy of the gravel road than in the more relative openness of the highway.  

After all that description of why he thought the accused might think sex was going to happen and did not form intention to rape, he then says of this:

I did prefer the complainant’s evidence over Mr. Rhodes evidence as to what happened at the side of the highway.  But that describes the activity.  It does not describe Mr. Jones (sic) mind.  In effect, that doesn’t matter because of  Section 273.2.   

So, Dewar basically says that, although circumstances may have led Rhodes to believe sex was a possibility and that he had no intent of imposition, it doesn’t matter; Rhodes was still guilty of sexual assault because he did not take reasonable steps to ascertain consent.

This flatly contradicts the accusations against Dewar that he believes clothes, kissing, partying, and suggestions of nude swimming justify non-consensual sex. He specifically says quite the opposite, that it does not justify a lack of consent.

Dewar then further illustrates Rhodes lack of concern over the next few paragraphs, but it’s not really controversial, so I won’t quote it here.

As an aside, there is one point of note, at no point in Dewar’s description of events did he ever describe the victim as saying no. Rhodes seems to have been convicted not because he pressed on when the victim said no to sex, but because he did not try to ascertain whether she wanted sex or not.

The only sign that I can find that the victim indicated sex was unwanted were on page 76:

forging on with the sexual activity on the side of the highway without further inquiry either before it began or midway through after she exhibited discomfort, does not satisfy the test of 273.2(b).

So I looked backed over the first pages, like I said I wouldn’t at the beginning, page 4 had this: “I further note that Mr. Rhodes continued with penile penetration of the victim’s vagina and briefly her anus, after she had expressed pain from her comment when he was digitally penetrating her vagina and fear. Your Lordship did find on the facts that there was a comment from her asking if he planned to kill her.”

On page 5 this: “I draw to My Lord’s attention that the victim was so afraid that she fled through the pan – without pants through the woods.”

And this: “He did pursue the victim after she had clearly rebuffed him.  Although, the Crown does concede that this attenuate by the victim’s response to subsequent advances by Mr. Rhodes during the walk to the highway.”

On page 31-32, Dewar asks this:

It’s one thing – the fact that a complainant is passive does not satisfy the – does not act as some sort of a defence – does not satisfy the consent And if there’s no consent then there’s a conviction.  So then you come to sentencing.  And – and (inaudible) there may be circumstances which are ruled out for conviction that may have some bearing.  I don’t know how much, but some bearing on sentence.  The fact that she didn’t say no, at any time, is not a defence to the conviction.  But does it add anything; is it part of the sentencing consideration?

He indicates that the victim did not say no and says that that is not a defence, but may affect sentencing. There’s some pages of talk of prior court cases by the prosecutor, then on p. 33-34 Dewar asks this:

it’s what – what concern I have is the – is the conduct on the highway – on the road leading up.  And I think when I made the decision; I found that at that point in time there was no intention on the accused to sexually assault the lady.  And there was a possibility out there – the door wasn’t closed and … The door to any kind of sexual conduct was no closed as they were walking up to the 24 highway… Now in this case, and I’m not critical of the complainant, I understand she was frightened, but she did something, he said – he made some comment about sexual activity and she said; let’s go to the highway.  

After some more talk about prior cases and a recess comes this from the prosecutor on page 40-41:

Firstly, one of the findings that I believe you made was that there had been at least three independent indicia of rebuffing of the accused prior to that circumstance.  There was a specific rebuffing in the car, there was a certain coldness, as described even by the accused, and there was the fact that she’d gone off into the bush.  Those indicia would not have led a reasonable person to believe that there was a reasonable likelihood of behaviour after that.  
On page 45 speaking to the defence Dewar states:

Well, I – I think she did rebuff him – I think I found she did rebuff him in the backseat of the car.

The following pages have the defence defending and indicating that at no point did Rhodes use violence.

So it seems that while she did rebuff his advances earlier in time, she later came to, at least on the surface, accept some of his advances afterwords and even suggested going to the highway when propositioned for sex. But at the time of the assault, I can not find anything that indicates (it’s possible I may have missed it) she actually indicated to Rhodes that she did not consent (although, Rhodes did not take reasonable measures to obtain it, which was why he was found guilty of sexual assault). After penetration and during the assault, she seems to have made a comment indicating pain along with a question about whether he would kill her, which was callously brushed off by him; this seems to be the closest the victim seems to come to actually verbally protesting the attack.

All this to say, that Rhodes never heard a straight-forward turn down of his advances except earlier on, after which the victim did seem to agree to some contact, although she did not agree to sex.

But, anyway, back on track, on p. 76-77 Dewar states:

This is a case of misread signals and inconsiderate behaviour.  There is a different quality to these facts than found in many cases of serious sexual assault.  There were signals given by the circumstances and indeed by the complainant, albeit the latter based upon self preservation, which ought not to be overlooked.  This is not a case in which Mr. Rhodes’ anticipation was groundless.  However, its consummation without reasonable inquiry was not justified. 
 

As I stated before the digression: Rhodes was convicted not because he pressed on when the victim said no to sex, but because he did not try to ascertain whether she wanted sex or not. This seems to have had some influence on Dewar’s sentencing.

Further on page 77 comes the “clumsy Don Juan” quote that was one the 'objectionable' statements he made:

But when talks of proportionality (similar sentences for similar offences), the court must compare apples and apples, not apples and oranges.  Yes, there were common threads. There was sexual intercourse; there was cunillingus and digital penetration. 

But 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.  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 archetypical cases cited.  

Unlike the sleeping women cases, there was no inert woman giving no signals at all.  There was some invitation however involuntary.  I’ve read you the facts that I found.  I don’t criticize the complainant.  She was a frightened young woman all alone in the presence of a large, perhaps loud, overbearing older man.  But she did give signals that he read the wrong way and was not considerate enough to make sure of what they were saying.
Again, this quote seems to have been ripped from context. It is not used to justify or condone Rhodes actions or justify rape, but only to show that Rhodes was not out to hurt someone and had no intent for rape (only a disregard for his victim), and because of this the sentencing of the archetypical cases shown earlier where there was intent may not applicable due to considerations of proportionality.

On page 78 Dewar quotes and earlier case:

Provocation of the offender by the victim is an obvious mitigating factor. More difficult to decide is whether, in a given case, there has been provocation. It is surely not provocation, for example, simply to be a woman, or to be attractive, or to be prettily attired. Sexual arousal is not the same thing as the arousal of a desire to seek sexual satisfaction by violence to another, and provocation of the first is not necessarily provocation of the second.

And then Dewar says on it:

The case uses the words provocation.  Perhaps enticement is a better word.  But even that is not really apt here.  I’m sure that whatever signals there were that sex was in the air were unintentional.  But that does not change the fact that they were there, more then just a manner of dress, more than the fact that she was a woman.  And they are a relevant, mitigating factor.  

So again, Dewar specifically states that attire, being a woman, being attractive, and causing arousal are not provocation for sexual assault and are not a mitigating factors, but that the victims signals were beyond that and into the realm of provocation, which can be a mitigating factor in sentencing. He then sites some relevant case law saying provocation can be used in sentencing.

Sex was in the air had appeared earlier in the transcript, on page 47. The prosecution is describing what Dewar had stated earlier, during the trial:

You say at page 22, at sentence nine, I conclude that although the accused was led by the circumstances to conclude that sex was in the air, he was insensitive to the fact the complainant was not a willing participant.  It was fairly argued by the Crown that as required by Section 273.2(b), he did not take reasonable steps to verify consent.  

In context, the “sex was in the air” quote was exactly the opposite of what the media and Dewar’s accusers tried to portray it as. The media and Dewar’s accusers had portrayed the quote as Dewar justifying sexual assault, when, in fact, he uses the quote to say that it was not an excuse for not taking reasonable steps to verify consent.

Then comes the sentence on page 80:

The signals given here, in this case, are at least relevant to the degree of moral blameworthiness of Mr. Rhodes.   So this case is different.  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.  But in this case therefore, not only is deterrence and denunciation important, so also are the other criteria in Section 718, including:  

1. Protection of society,

2. Rehabilitation, and

3. Promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim and to the community.  

Protection of society, I do not believe is advanced one iota by putting Mr. Rhodes in jail.  The Pre-Sentence Report suggests that there are no psychological or antisocial patterns and Mr. Rhodes’ history confirms that.   

As to rehabilitation and promoting a sense of responsibility, a lengthy prison term, in my view, for non-thinking behaviour tends to stifle constructive change rather then encourage it.   

The Pre-Sentence Report is favourable.  Mr. Rhodes has no criminal record, has steady employment, a supportive girlfriend.  There is no real suggestion of recidivism.  By this conviction he is branded a sexual offender, at least in the eyes of many members of society.  And he has been living under this cloud for four and a half years.  I do not view either Sandercock or Arcand as particularly helpful where an accused is found guilty because he failed to measure up to a deemed intent.  Mr. Coggan is right that the moral blameworthiness of Mr. Rhodes on this night, in those circumstances was not at the same level as the accused persons in either Sandercock or Arcand.  Not all guilty people are morally culpable to the same level.  This difference is not reflected in conviction. It can be reflected in sentencing.   

If I were forced to utilize the Sandercock approach, the lesser level of moral culpability in the unique circumstances of this case is a material mitigating factor.  However, I do not feel the Sandercock

starting point should be applicable in this case because of the different fact situation, which I have earlier described.   I mention also the fact that Parliament has now determined that conditional sentences are not available for cases such as this anymore.  However, when this offence was committed, conditional sentences were not only available, they were not infrequently utilized.  Mr. Rhodes ought not to be prejudiced by the shifting sands of time, and I am able to draw upon a conditional sentence for this offence as one arrow in my sentencing quiver.  

The real question is whether, in this case, it is appropriate to do so.  Deterrence to Mr. Rhodes is not a factor.  With his past and his Pre-Sentence Report, I see no basis for believing that he is at greater risk to do this again if he doesn’t go to jail.  He has been living with the system including the vagaries of placing a position before the court.  If he hasn’t learned to be more respectful towomen by this experience, he never will.  

I also am of the view that general deterrence and denunciation can be found in a properly crafted conditional sentence.  The Pre-Sentence Report demonstrates that Mr. Rhodes likes his freedom; to fish, to camp, to go out and visit.  A conditional sentence which restricts those activities, in my mind, imposes jail like conditions that do impact on a person’s quality of life.

He then goes on to list the terms of the conditional sentence.

The conditional sentence was imposed because Rhodes wasn’t as blameworthy as to require jail as there was no intent to harm, just signals that were taken the wrong way that entered the realms of provocation and a disregard for reasonable inquiry on his part, for which he was convicted. He wasn’t likely to reoffend, deterrence is not a factor, and jail wouldn’t rehabilitate him.

Dewar believed being a sex offender and having jail-like restrictions on freedom were enough of a punishment.

So, my conclusion, the sentence Dewar handed out may or may not have been appropriate, and that’s to be decided on appeals, but the justification for his sentence was not unreasonably inappropriate. He was definitely not the misogynistic rape apologist that critics of the sentencing have been accusing him of being and he does not deserve disciplinary punishment.

On the other hand the media-led attacks on Dewar were grossly unfair. His judgment was quote-mined and the controversial remarks were ripped completely out of context, sometimes to the point of making Dewar seem to say the opposite of what he actually said. Dewar specifically and repeatedly said that attire, demeanor, attractiveness, suggestions of nude bathing, sex being in the air, etc. were not excuses for sexual assault, were not invitations for sex, and did not justify rape. He very clearly stated that consent can not be implied from any of these but must be given and that reasonable measures must be taken to obtain consent.

Rhodes was given a conditional sentence because he was not a threat to reoffend and would not be rehabilitated through prison and because his blameworthiness was limited as (although, he was still blameworthy) as he did not intend harm, but rather had callously misread signals. Dewar thought that being a sex offender and having jail-like restrictions on his behavior were punishment enough.

It is perfectly legitimate to take these factors into consideration for sentencing and it occurs all the time, whatever you may think of the leniency of the justice system and this case in particular.

I hope his accusers apologize for the attack on Dewar and, by consequence, the justice system as a whole, but I have no real expectations of this. Hopefully, he will at least be able to get back to work without restriction. Also, I hope the next time they’ll wait for enough information rather than just ripping quotes out of context in a knee-jerk fashion and destroying a person’s career for headlines.

One other anecdotal thing stood out to me in the reaction to this case. A lot of those who would normally be opposed to mandatory sentencing seem to have been supporting mandatory sentencing in this case and were advocating that he not get less than the generally accepted three years for sexual assault. But, either the judge is given leeway to sentence as he sees fit or the judge is not. It is hypocritical to attack mandatory sentencing as a matter of course, but then demand that judges use mandatory sentencing despite the circumstances in specific cases. Whatever your position on mandatory sentencing, at least be consistent in it.

Edited: on March 13 to make some things more clear.