A man convicted of sexual assault is asking the Yukon Court of Appeal to be acquitted because of mistakes and “stereotypical” comments regarding sexual assault made by the presiding judge.
Jackie Kodwat, 45, was convicted on Oct. 26, 2016 of sexually assaulting a 17-year-old girl.
In his reasons, judge Donald Luther detailed why he didn’t believe the 17-year-old consented to have sex with Kodwat.
“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,” Luther wrote.
“It defies any reasonable expectation of being believed.”
That didn’t sit well with the defence.
“The judicial system is barely emerging from its practice of relying on stereotypical reasoning about complainants for the purpose of resolving allegations of sexual assault,” lawyer Vincent Larochelle wrote in his filing to the Court of Appeal.
“The trial judge is now introducing stereotypes against the accused, and plunging the courts back into an era of irrational and unproven assumptions.”
That in turn affected the judge’s ability to consider whether there was a reasonable doubt present, Larochelle wrote.
While criticizing Luther’s comment, Larochelle argued that it opened the door to introducing evidence about the victim’s sexual history — specifically, an alleged relationship she had with an older man.
Under what is known as the rape shield law, evidence about a sexual assault victim’s past sexual conduct can’t be introduced in courts except for very limited special circumstances and requires the approval of a judge.
The 17-year-old woman accused Kodwat of raping her while she was sleeping at his place.
According to the decision, she was looking for a place to stay the night of Dec. 20, 2015 and ended up at Kodwat’s house. She was tired and drunk. Kodwat testified they had sex but it was consensual.
The woman, who can’t be identified, testified she fell asleep fully clothed but woke up with her pants at her ankles, and Kodwat “trying to pull her close to him” before she left the residence.
She testified via CCTV and was clearly “distraught,” Luther said.
Kodwat is challenging his conviction on multiple other grounds, including the fact that the judge mentioned his criminal record as part of the evidence.
It’s not the first time judge Luther’s comments in a sexual assault case have come under scrutiny.
In August 2016 a coalition of women’s groups published a letter in the News criticizing comments Luther made in a sexual assault case at the Whitehorse cadet training camp.
Luther called the victim’s behaviour “foolish” because he allowed the accused to lie in his bed late at night and let him play a game that resulted in the sexual assault.
“Rather than calling victims of sexualized assault foolish, we should be acknowledging the bravery and effort it took for them to come forward, report the crime committed against them and go through the criminal justice system,” the women’s group wrote in their letter.
“Instead of suggesting a victim is to blame for their assailant’s actions, we should be holding offenders accountable for their choice to commit violence.”
In the end, consent is the only issue that matters, the group wrote.
Kodwat has yet to be sentenced because the Crown prosecutor is seeking to have him declared a dangerous offender.
He’s already been convicted three times for sexual assault, seven times for assault, and seven times for failure to comply with court orders or failure to appear.
But because Luther is a deputy judge from Newfoundland and because of Crown prosecutor schedules, the dangerous offender hearing won’t take place until May at the earliest.
The hearing, which will require Luther to fly from the other side of the country and requires expert testimony and five days in court, will be a waste if the conviction is quashed, Larochelle argued.
The appeal is ready to be heard and would only take half a day, he wrote.
The appeal will take place regardless of the dangerous offender application, Larochelle wrote, but if successful would make the dangerous offender application useless.
“Not only is the applicant being denied a remedy for months, but there is no reason for this denial, and this denial may very well lead to a sad waste of Yukon’s scarce resources.”
Yukon Supreme Court Justice Harvey Groberman denied Larochelle’s attempt to have the appeal heard before the dangerous offender hearing.
Contact Pierre Chauvin at pierre.chauvin@yukon-news.com