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A convicted rapist will not go to jail because a Manitoba judge says the victim sent signals that "sex was in the air" through her suggestive attire and flirtatious conduct on the night of the attack.

Kenneth Rhodes was given a two-year conditional sentence last week which allows him to remain free in the community, in a decision likely to trigger strong debate. The Crown wanted at least three years behind bars.

KEN GIGLIOTTI / WINNIPEG FREE PRESS A Nov. 2009 file photo of Manitoba Judge Robert Dewar, who recently spared a convicted rapist jail time because the victim sent signals that "sex was in the air" through her suggestive attire and promiscuous conduct.

Queen's Bench Justice Robert Dewar called Rhodes a "clumsy Don Juan" who may have misunderstood what the victim wanted when he forced intercourse along a darkened highway outside Thompson in 2006.

Rhodes and a friend met the 26-year-old woman and her girlfriend earlier that night outside a bar under what the judge called "inviting circumstances." Dewar specifically noted the women were wearing tube tops with no bra, high heels and plenty of makeup.

"They made their intentions publicly known that they wanted to party," said Dewar. He said the women spoke of going swimming in a nearby lake that night "notwithstanding the fact neither of them had a bathing suit."

The foursome left the parking lot and headed into the woods, court was told. Rhodes began making sexual advances towards the victim, who initially rejected him but later returned his kisses. Rhodes then forced himself upon the woman once they were alone.

Rhodes pleaded not guilty at the trial on the basis he thought the woman had consented. Dewar rejected his defence -- but said aspects of it can now be considered in sentencing.

"This is a different case than one where there is no perceived invitation," said Dewar. "This is a case of misunderstood signals and inconsiderate behaviour."

Dewar said he didn't want to be seen as blaming the victim but that all of the factors surrounding the case must be viewed to assess "moral blameworthiness."

"I'm sure whatever signals were sent that sex was in the air were unintentional," he said.

The Crown was seeking at least three years in prison for Rhodes, who has no prior criminal record and works for the City of Thompson. They cited numerous precedents from the Manitoba Court of Appeal suggesting the "starting point" for a major sexual assault involving intercourse is a penitentiary sentence.

"This sentencing will raise a number of issues relating to public confidence in the sentencing process," Crown attorney Sheila Seesahai told court. She said the victim was at the mercy of her much larger attacker and his "repugnant and reprehensible" conduct.

In a victim impact statement, the woman described her ongoing fear related to the attack.

"I'm a prisoner in my own home," she wrote. The woman said she bears a permanent reminder of what Rhodes did to her -- a scar on her knee.

"This is a very serious rape case. The harm to the victim can't be underestimated," said Seesahai.

Defence lawyer Derek Coggan told court it's clear alcohol was a factor for both his client and the victim in terms of their ability to make good judgments.

"She had a very different understanding of what was in the accused's mind than he did," said Coggan. He said Rhodes never threatened the woman, didn't have a weapon and was simply "insensitive to the fact (she) was not a willing participant."

Dewar said the case was not "typical" of ones the courts often see and shouldn't be viewed as a precedent.

"There is a different quality to this case than many sexual assaults," he said. "Not all guilty people are morally culpable to the same level. This difference is not to be reflected in conviction. It can be reflected in sentencing. Protection of society is not advanced one iota by putting Mr. Rhodes in jail."

Rhodes will be under a 24-hour curfew for the first year of his conditional sentence, with exceptions to allow him to work and attend to medical appointments. His name will also be placed on the national sex offender registry. The judge also ordered Rhodes to write a letter of apology to his victim.

www.mikeoncrime.com