Should convicted rapists automatically go to jail?

The answer seems obvious. Someone who is convicted of rape, should go to jail.

But should that happen in every case?

If a judge decides that jail is not an appropriate punishment in a particular case, should he or she have to give reasons to support that decision?

And if that judge picks the wrong words to support that decision, should he or she be removed from the bench?

It’s a topic that’s central to a firestorm of media activity in Canada and abroad that began with a judges controversial comments in the sentencing portion of a criminal trial.

Now protesters are calling for the judges removal from the court.

THE FACTS AS I KNOW THEM

I first learned of the story from a CBC.ca article titled: Judges sex assault comments wrong”

According to published reports, Justice Robert Dewar (pictured at right) conducted the trial of man (40 year old Kenneth Rhodes) charged with sexually assaulting a woman back in 2006.

CNN.com article stated: Rhodes met the victim and her friend at a bar before they drove out of town to a small lake on an isolated road. According to the victim, Rhodes made several passes at her, and later that night, after she was intoxicated, he raped her.

Dewar convicted Rhodes, and then moved into the “sentencing phase” of the proceedings.

That’s where the wheels fell off.

Dewar sentenced Rhodes to a two year conditional sentence to be served at home .

The prosecution had asked for at least a three year sentence.

THE CONTROVERSIAL COMMENTS

Dewar made references to the way the victim and her friend were dressed: in tube tops, no bras, high heels and wearing plenty of makeup.

He referred to there being “inviting circumstances,” and that “sex was in the air.”

WERE DEWARS COMMENTS RELEVANT?

The way a someone dresses  is not an invitation to a sexual assault (it does not imply consent). That’s been settled law for some time.

If Dewars comments were made in the decision of guilt or innocence, then clearly they would have been irrelevant.

But Dewar convicted Rhodes. It doesn’t appear that the way the victim dressed or acted factored into his determination of guilt.

The comments were made in the sentencing phase.

The part of the trial where the judge must determine must decide the appropriate sentence for this individual under these circumstances.

So the question is: were Dewar’s comments relevant in determining the appopriate sentence?

Dewar choose to spare Rhodes from jail.

He called Rhodes a “clumsy Don Juan” who may have misunderstood what the victim wanted.

Which raises another question: “How could Rhodes possibly misunderstand what the victim wanted?”

Where Dewar’s comments designed to answer this question?

Were they made in an attempt to give context to “these circumstances?”

CONCLUSION

The case has been referred to the Canadian Judicial Counsel.

I expect that the Manitoba Crown will appeal Rhode’s sentence.

Those are the “official” paths that this case will follow.

In the meantime, weigh in on this subject. What do you think?

Should someone convicted of non-consensual sexual intercourse (rape) automatically go to jail (no matter what the circumstances)?

Is a conditional sentence ever appropriate in cases of non-consensual sex?

Was Dewar “clumsy” in describing why he gave Rhodes a conditional sentence, or

Did his comments appear to shift blame to the victim?

What do you think should happen to Dewar?

 

 

 

 

 

 

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