A man is appealing his conviction on the grounds that the judge allegedly made stereotypical comments about sexual assault.
On Oct. 26, 2016, Deputy Judge Donald Luther of Newfoundland convicted Jackie Kodwat, 45, of sexually assaulting a 17-year-old girl.
In his reasoning for the decision, Luther wrote that he found the defence’s argument that the sex was consensual to be “preposterous” and “self-serving” due in part to the age gap between the claimant and accused.
“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,” wrote Luther.
The appeal was filed by defence attorney Vincent Larochelle. It lists seven grounds for appeal including that “the judge engaged in speculation and made findings unsupported by the evidence.”
The appeal states that Luther erred in his treatment of Kodwat’s criminal record, engaged in speculation and relied on unfounded sexual preferences of young women.
“The judicial system is barely emerging from its practice of relying on stereotypical reasoning about complainants for the purpose or resolving allegations of sexual assault,” the appeal states.
“The trial judge is now introducing stereotypes against the accused and plunging the courts back into an era of irrational and unproven assumptions.”
In his decision, Luther also cited Kodwat’s criminal history. It includes convictions for three sexual assaults, seven other assaults, and seven charges of failure to comply with court orders or failing to appear.
Luther wrote of the defence’s argument, “It is clearly self-serving coming from a repeat offender who is familiar with the court process.”
But the defence argues that the appellant’s criminal record is a result of his troubled aboriginal background, and drug and alcohol addictions. He has now been sober for five years.
They also noted that he has admitted to previous sexual assaults.
“As the appellant explained, about 99 per cent of his criminal record is attributable to alcohol,” the appeal states.
The sexual assault in question took place Dec. 20, 2015 when the complainant ended up at Kodwat’s house after looking for a place to stay while tired and drunk. There is still some confusion as to how she arrived at his home.
She testified via CCTV that she woke up with her pants around her ankles and Kodwat “trying to pull her close to him.”
A witness testified she arrived at a friend’s house the next morning crying and recounted what had happened. She immediately reported the assault to the RCMP.
Luther stated that during testimony she was “clearly distraught.”
The Crown is also seeking to have Kodwat designated as a dangerous offender.
This means that he could receive an indeterminate jail sentence.
Larochelle applied to have the appeal heard before the dangerous offender hearing, but on Jan. 3, Deputy Judge Harvey Groberman dismissed this application.
Larochelle argues this may be a waste of resources if the appeal is successful.
“I think this will have the potential to lead to an unnecessary waste of resources,” Larochelle told the Star via email.
“Experts will have to fly in from all over the country for the dangerous offender application, and it may prove to be useless ultimately.”
According to the appeal, these resources include a Gladue report, expert evidence, at least five days in court, and flying in Luther for a week.
The dangerous offender hearing is set for the second week of May due to Luther’s schedule.
Kodwat’s appeal likely won’t be heard until the late summer or fall of this year.
He has been in custody at the Whitehorse Correctional Centre since last Dec. 21.
His next court appearance is scheduled for Friday.