Justice Robert Dewar of Queen's Bench Court made the remark when he gave a man a two-year conditional sentence which allows him to remain free in the community.
The judge also pointed to the way the victim and her friend were dressed — tube tops, no bras, high heels — and noted they were wearing plenty of makeup.
The Crown had asked that Kenneth Rhodes, who was convicted of sexual assault in the attack five years ago, be sent to prison for at least three years.
"That 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," Karen Busby, a University of Manitoba law professor known for her work on gender issues, said Thursday.
"We've got a victim who five years after the assault ... says she's still afraid to leave her home... It's inappropriate."
Busby said the judge's comments reinforce the reality that not everyone has moved past the old legal framework that there could somehow be implied consent to sex.
She 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.
Busby noted it took the Supreme Court until 1998 in a ground-breaking "no means no" ruling to clarify and strengthen Canada's sexual assault laws.
The high court threw out an Alberta Appeal Court decision which had upheld the acquittal of an Edmonton man who was accused of sexually assaulting a 17-year-old job applicant.
Appeal Justice John McClung had said that "the complainant did not present herself in a bonnet and crinolines" when she went for a job interview in Steve Ewanchuk's trailer. McClung also said that Ewanchuk's advances "were far less criminal than hormonal."
The Supreme Court said the comments reinforced the "myth" that the complainant invited the sex assault with her appearance.
"Clearly there's been a change in many, perhaps in most judges, and they have a better understanding of consent law, but not all judges do, and it happens with troubling frequency that there (is) very questionable reasoning," said Busby.
She said she couldn't comment on whether the Crown should appeal last week's sentence. "I don't have all the facts so it's hard to make that determination."
But she noted that sentences are rarely changed on appeal.
The Crown said Thursday it had ordered a transcript of what was said in court and would review it before deciding whether to appeal.
Dewar called Rhodes a “clumsy Don Juan” who may have misunderstood what the victim wanted when he forced her to have sex in the woods along a dark highway outside Thompson, Man., in 2006.
Rhodes and a friend had met the 26-year-old woman and her girlfriend earlier that night outside a bar under what the judge called “inviting circumstances.”
Rhodes pleaded not guilty at his trial on the basis he thought the woman had consented. Dewar rejected that defence in convicting him, but said he could consider some of that argument during 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 in the case had to be viewed to assess “moral blame worthiness.”