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Know Means Know

The howling mob had free rein for two weeks to vilify a decent man.

They screeched and marched and chanted their kneejerk slogans at will.

Prominent journalists like Winnipeg Free Press columnist Lindor Reynolds and Winnipeg Sun writer Kevin Engstrom jostled to get to the head of the lynch mob as they dropped their oh-so-clever bon mots.

No means No, they bellowed as they demanded the immediate termination of Court of Queen's Bench Justice Robert Dewar. His unpardonable sin? Doing his job without bowing to political correctness.

And then, this week the swarm was stopped in its tracks--- by 88 pages of print---the transcript of the sentencing of a Thompson man, convicted by Dewar of rape, but sentenced to house arrest instead of the penitentiary term demanded by the Crown---aka, the truth.

"Kenneth Rhodes, rapist, won't be going to jail because Dewar feels the victim was sending him signals that he was going to get lucky. She was sending them, presumably, until she said no, meant it and then was sexually assaulted.

"At that point it's moot what she was wearing, how many drinks she'd had or if she could tie a maraschino cherry stem in a knot with her tongue."

"She said no and he raped her," scribbled Lindor Reynolds, to whom the truth is an afterthought.

For, you see, the court transcript unequivocably says this about the "victim" of the rape:


Gasp. Shock. Outrage. How could you say that?

Uh, because of the evidence?

Justice Dewar: "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?"

Crown attorney Sheila Seesahai: "I’d respectfully submit that it’s not, My Lord."
And elsewhere:

Seesahai: "I’m finding it difficult to understand how it would assist the accused in this case that she didn’t say or do anything to make him stop."

The Court: " Well, it’s not..."

S. Seesahai: "In the sense of, of words. Like saying no that you’re suggesting."

But, but, but ...why would he be convicted, then?

Dewar laboured long and hard on that question. There was just as much evidence to indicate there was no rape, in law, as to indicate otherwise. The RCMP had been equally hesitant in deciding they had probably cause to lay a charge, taking a year and a half , and only then after getting an outside legal opinion.
The scales tipped against Rhodes on one slender point: he didn't ask.

Despite the flirting, the kissing, the handholding, the passive aquiescence to his sexual fumbling----he should have asked before he did the deed.

But, but, but ... the victim told the Free Press a different story.

That's bulls—," the victim said.... "I did say no to him. I kept saying no. He knew that I didn't want (sex)."

Yeeeeaaahhhh. Nobody could be more surprised at Miss Victim's newspaper debut than the judge and the prosecutor who listened to her at the trial where evidence is given under oath.

If the court had heard the same story from Miss Victim as she spun in the FP, Crown attorney Seesahai would not have had to labour so mightily to turn Kenneth Rhodes into Snidely Whiplash.

He had, she thundered, deliberately ignored three large STOP signs.

Sessahai: " 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." (It sounds like there's a word or two missing in the last sentence...ed.)

There's obviously something lost between the trial and the transcript of sentencing.

He was rebuffed in the car? Did he try to put his arm around her shoulders? His hand on her knee? Steal a kiss?

A certain coldness ? She was 26 and he was 40. Maybe she wasn't keen on getting stuck with the old guy. Her girlfriend was having a great time. She (the girlfriend) even dumped Miss Victim off in the bush alone with her new friend while she (the girlfriend) drove off with hers.

But Miss Victim warmed up more than she now lets on.

She went off into the bush? Now this is completely lost in translation.
More intriguing is what's missing in the transcript about Miss Victim's actions immediately before the sex.

The Court: "...what concern I have 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 -- "

S. Seesahai: "Which – which door is My Lord speaking --"

The Court: "The door to any kind of sexual conduct was not closed as they were walking up to the highway."

S. Seesahai: "I guess I’m just – perhaps I’m misunderstanding what My Lord is saying. "

The Court: "If you look at Arcand , there’s one sentence at paragraph 13 that says: 2930 The sentencing judge found that prior to passing out, the complainant had done nothing to encourage the offender to have sex with her. 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."

Even the prosecutor conceded that point elsewhere:

Sessahai: "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." (Again, there's a word missing or something, but the point is clear, Miss Victim's subsequent behaviour attenuated (weakens, dilutes) the rebuff...ed.)

Yes it's all very confusing to somebody relying only on the sentencing transcript, but the big picture is not.

Miss Victim and a friend went for a night out in their sexy, party best.
They went to a hotel where they found a bachelor party in full swing.
They paired up with two men, then drove 20 minutes to a lake nearby for more privacy.
The friend left in the car with her new beau and Miss Victim stayed in the bush with hers.
She blew hot and cold on his advances, but the "clumsy Don Juan" was encouraged by her "hot" and not discouraged by her "cold".
When they got to the highway in the story, he made his move.

Prosecutor Sessahai had to work just as hard to paint the encounter as a terrifying attack.

Miss Victim, she declared, was enveloped by pain and fear.

Fear? She was alone with a heavier, older man.

Pain? When he stole third base, she told him it hurt.

Any woman who has had sex---with a man---knows the first time can be awkward, more Adam Sandler than Brad Pitt.

Oops. Sorry. Ouch. My fault. Am I too heavy? Not there. Sorry. Are you in?

Rhodes also performed oral sex on Miss Victim. Put what he did together and its called foreplay.

That didn't stop Sessasai's over-the-top attempt to turn the Rhodes case into a major crime warranting major time.

Sessasai: " My Lord, excuse me, where they refer to the Supreme Court of Canada in McCraw... they do make it clear in a discussion of the facts, both of – of the incident that had occurred in Arcand and in the reconsider cases that they were reviewing, that the fact of a penis in the vagina is, in their words, incontrovertibly a major sexual assault."

Dewar wasn't having it.

Rhodes didn't hit the woman, or scream at her, or threaten her, or raise a fist, or do anything to make her fear him. He was a law-abiding citizen before the incident and for four years afterwards. A pre-sentence report says there's no likeihood he will re-offend. There's no reason for a prison sentence to deter him from future sexual assaults or, in this case, as denunciation of an act of seduction gone bad.

With that, Dewar imposed his sentence.

" To hear Queen’s Bench Court Justice Robert Dewar tell it, a 26-year-old rape victim was inviting trouble by the way she was dressed and how she was acting. No, really." wrote Kevin Engstrom.

No, not really. All you have to do is read the transcript to read the truth.


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