This case has been referred to by many as the “sex is in the air” case. On October 12, 2010 the appellant Rhodes was convicted of sexually assaulting the complainant, a young Aboriginal woman half his size, on the side of a deserted highway north of Thompson, Manitoba. During the assault the complainant cried that Rhodes was hurting her (he responded it would only hurt for a little while) and asked Rhodes if he planned to kill her. She had bruises and cuts on her backside and scrapes from running through the forest half-dressed to escape from him. On February 18, 2011, he was sentenced to a conditional sentence (no jail-time). In sentencing, the judge referred to various mitigating factors including that “sex was in the air”, the complainant was wearing a tube top with no bra, high heels and makeup, and referred to Rhodes as a “clumsy don juan” who “misread signals” and engaged in “inconsiderate behaviour”. These statements invoke discriminatory beliefs about sexual assault complainants, including that women fantasize about rape and that women are to blame for our assaults by the way we dress, for being intoxicated or in a bar, or if we engage in what is perceived to be “risky” behaviour.
The accused appealed conviction and the Crown ultimately conceded that there should be a re-trial. Both parties argued that the Court of Appeal could overturn the conviction on the basis of an alleged technical legal error by the trial judge in assessing the evidence in his reasons for judgment (for the criminal lawyers who are reading this, a W.(D.) error).
LEAF sought leave to intervene in the appeal to address the ongoing influence of rape mythologies in the prosecution of sexual assault, particularly in cases where the complainant is an Aboriginal woman. LEAF argued that the grounds for overturning the conviction proposed by the Crown and the Respondent were themselves fatally informed by the very rape mythologies that emerged in the trial judge’s reasons and that the application of the W.(D.). test in sex assault cases is influenced by discriminatory views and gender bias.
LEAF was ultimately denied leave to intervene, primarily on the basis that the Crown had conceded a retrial. LEAF’s motion for leave to intervene, which was front page news, nevertheless had a significant impact in raising public awareness of the systemic under-reporting and under-prosecution of sexual assault and the prevalence of discriminatory beliefs about sexual assault complainants at every stage of the criminal process, from the response by police to reports of sexual assault, to prosecution, to trial and appeal.