A Whitehorse man who was found guilty of sexual assault because the presiding judge ruled the man was too old to obtain consent will get a new trial.
Jackie James Kodwat, 46, appealed his October 2016 sexual assault conviction. The appeal was based on the remarks of the presiding judge, Donald Luther, during the initial trial.
Kodwat acknowledged having sex with a 17-year-old girl in Dec. 2015, but maintained that the intercourse was consensual.
The victim — who can’t be named — testified she was raped after showing up at Kodwat’s house during the night looking for a place to sleep. She says she passed out in a chair but woke up in his bed with some of her clothes missing.
Luther found it unlikely that “an attractive 17-year-old girl” would want to have sex with a man who was 45 at the time.
“It is clearly self-serving coming from a repeat offender who is familiar with the court process. It has no air of reality…. It does not accord in any way with reasonable human behaviour for that time, place, and circumstance,” Luther said in his trial judgment.
“It is inconceivable that an attractive 17 year old girl would consent to kiss for 20 to 25 minutes and then have unprotected sexual intercourse with the accused who meant nothing to her and whom she did not remember — and furthermore, who was 28 years her senior.”
In his appeal, Kodwat successfully argued that “the conviction was founded upon the stereotypical reasoning and speculation regarding the way in which men and women interact to which he referred in his submissions.”
The court agreed that the conviction wasn’t based solely evidence. “The conclusion that it was ‘inconceivable’… was a stereotypical assumption or generalization lacking in an evidentiary foundation,” said Justice Willcock during the ruling. “In my view, there is a danger that assumption resulted in a conviction that was not founded upon the evidence.”
Kodwat says she asked to come into the bed and he obtained consent before having intercourse.
The conviction has been set aside and a new trial ordered.
Kodwat will return to the Whitehorse Correctional Centre while he awaits that new trial.
He was designated a dangerous offender in May 2017 during his sentencing for the sexual assault conviction. He was handed a six-year sentence — with credit for 25.5 months served — to be followed by a 10-year long-term supervision order.
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