WINNIPEG — A Manitoba judge's decision to sentence a rapist to house arrest instead of prison, partly because of the way his female victim was dressed, is going to a higher court.

The Crown says Court of Queen's Bench Justice Robert Dewar wrongly suggested that the woman's decision to wear a tube top and behave flirtatiously somehow played a part in the sexual assault she suffered along a highway outside Thompson in 2006.

Dewar "erred in finding the actions of the complainant mitigated the moral culpability of the respondent," Crown attorney Michel Mahon wrote in a notice of appeal filed this week.

The ruling has created public outrage since it came to light last month. The Canadian Judicial Council is investigating several complaints, including one from the Manitoba government, and there have been protests outside the Winnipeg courthouse and elsewhere.

Kenneth Rhodes was convicted of sexual assault on a younger woman he met outside a bar in the northern mining city. Rhodes forced himself on the woman in woods nearby.

The Crown was seeking a prison term of at least three years, but the defence said Rhodes and the victim had been drinking and Rhodes did not understand that the woman did not want sex.

In sentencing Rhodes, Dewar noted the victim wore a tube top with no bra, high heels and makeup, had talked about going swimming, and had gone willingly with her attacker. He suggested "sex was in the air" and called Rhodes a "clumsy Don Juan" who may have misunderstood the woman's signals.

A legal expert has called the ruling a legal throwback.

Karen Busby, a University of Manitoba law professor who specializes in gender issues, said earlier this month Rhodes's sentence goes against a 1988 Supreme Court ruling that said women do not invite sexual assault through their appearance.