A University of Manitoba law professor has concerns about a judge's comments at a sexual assault sentencing.
Karen Busby said the remarks by Justice Robert Dewar are a legal throwback to the time when how a woman dressed or acted could be treated as implied consent to sex.
Dewar said "sex was in the air" when he spared a man jail time by handing him a two-year conditional sentence instead and allowing him to remain free in the community.
'There are lots of women who will dress to go out and to party and they're going to have alcohol, but when they do that they're not saying, 'oh, and please rape me.' —Karen Busby, University of Manitoba law professor
The Crown had sought a prison sentence of at least three years.
The sentence was delivered last week in Thompson, Man.
The comment was inappropriate, even if Dewar did convict the man of sexual assault, said Busby.
During the sentencing, Dewar also commented on the way the woman was dressed and her actions the night she was forced to have sex in the woods along a dark highway outside Thompson in 2006.
The man 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."
He pointed out the victim and her friend were dressed in tube tops, no bras, and high heels and noted they were wearing plenty of makeup.
Dewar called the man a "clumsy Don Juan" who may have misunderstood what the victim wanted.
'This is a case of misunderstood signals and inconsiderate behaviour.' —Justice Robert Dewar
"This is a case of misunderstood signals and inconsiderate behaviour," he said.
Busby said laws regarding consent may have changed but some attitudes have not.
"That [decision] goes back to suggesting that women are in a state of constant sexual readiness and that sexually active women will consent to sex with all comers," she said.
"It should have changed 20 years ago. It should have changed 40 years ago. But we can see that it hasn't changed for some," she added, saying the decision makes her sick to her stomach.
"Every Friday and Saturday nights, there are lots of women who will dress to go out and to party and they're going to have alcohol, but when they do that they're not saying, 'Oh, and please rape me.'"
Busby also noted an incident just last week in Toronto where a police officer had to apologize after he suggested women could be inviting sexual assault by the way they dressed.
"We had a police officer last week in Toronto saying to a group of university students that if a woman dresses like a slut she should expect to be raped," she said.