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Sexual Misconduct in the Military, Part I – The Preliminary Battle Plan

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Canada’s Defence Minister Anita Anand recently advised Parliament that she has ordered the Canadian Armed Forces to plan significant operational changes, meant to ground the cultural transformation required to reduce the CAF’s high rate of sexual misconduct amongst service members.

The changes that the CAF has been ordered to plan are based on 48 recommendations made by prior Supreme Court Justice Louise Arbour. She conducted an extensive workplace assessment of the CAF, and released her assessment report in May 2022.

The Arbour report has much to teach other organizations about combatting sexual misconduct, as well as how to – and how not to – properly incorporate a workplace assessment into an anti-harassment program. It helps to know that Justice Arbour’s assessment of the CAF is the third conducted within the last seven years. Her report is as much a description of how the CAF failed to make best use of earlier assessments as it is a compass pointing the way forward.

This is the first of three blog posts that will help you avoid some of the mistakes made by the CAF when it retained its first civilian workplace assessor (Justice Marie Deschamps) in 2014, and then tried – unsuccessfully – to implement her recommendations.

In this post you will learn about Justice Deschamps’ recommendations and what CAF, in the years since, said it was doing to fulfil them.

In the second post you will uncover what the Arbour assessment showed the CAF actually did with the Deschamps recommendations (spoiler alert: not much!), and some lessons your organization can learn from that about how to best use a workplace assessment.

The third post will bring you up-to-date with the recommendations the CAF is working with at present – those made by Justice Arbour.

Ready? Then, forward….march!

The 2014 Deschamps Workplace Assessment

Justice Deschamps’ 2014/15 assessment was the first independent assessment the CAF requested of its sexual misconduct policies and programs.

The CAF retained Justice Deschamps after a series of media reports alleged the Forces were in denial about the high rate of sexual assault and harassment within the ranks. Despite prior media exposés about unreported assault amongst service members, as at 2012, the CAF was still asserting, based on its own internal surveys, that only 3% of its members were subjected to sexual misconduct each year. The CAF considered this comparable to the rate of sexual harassment and assault in Canada’s civilian workplaces.

Notoriously insular, for the CAF it was a substantial step to retain a civilian workplace assessor. Unfortunately, the CAF limited the value and effectiveness of Justice Deschamps’ assessment from the outset. How? By unduly restricting her mandate.

You see, at that time, the CAF (wrongfully) perceived the issue of sexual misconduct to be a problem arising mainly from deficiencies in sexual misconduct policies and procedures. The CAF restricted Justice Deschamps’ mandate accordingly. She was not permitted to review how the military justice system responded to complaints of sexual misconduct. She was not allowed to review the outcome of any particular complaint. She was not asked for an overall assessment of what was driving sexual misconduct within the forces.

Justice Deschamps’ Findings

Despite her limited mandate, Justice Deschamps was able to pinpoint significant problems. She made ten detailed recommendations.

Her assessment revealed a very different picture than the one the CAF had been telling itself. Justice Deschamps found that sexual misconduct was rife within the ranks. CAF members described:

[A] sexualized environment in the CAF, particularly among recruits and non-commissioned members, characterized by the frequent use of swear words and highly degrading expressions that reference women’s bodies, sexual jokes, innuendos, discriminatory comments with respect to the abilities of women, and unwelcome sexual touching. 1

Justice Deschamps “also heard reports of quid pro quo sexual harassment. Some participants further reported instances of sexual assault, including instances of dubious relationships between lower rank women and higher rank men, and date rape. At the most serious extreme, these reports of sexual violence highlighted the use of sex to enforce power relationships and to punish and ostracize a member of a unit.” 2

Cost of reporting outweighed the benefit: Justice Deschamps found that most incidents of sexual harassment and assault went unreported and that victims had a “deep mistrust that the chain of command will take any such complaints seriously.” 3

Victims feared that they would be revictimized by the complaint process, reprised against, ignored or disbelieved, and widely perceived that making a complaint would negatively impact their career opportunities.

Moreover, victims did not trust that their complaints would be kept confidential; the complaint procedure required reporting to one’s supervisor, who was to do the same in turn until someone in the chain of command felt equipped to address the issue. Supervisors did not know how to respond sensitively or appropriately, and were largely not trusted as being genuinely interested in doing so.

Policies were confusing and poorly written: Members reported confusion as to what behaviour was prohibited. The definitions and descriptions of behaviour that fell under the umbrella term of “sexual misconduct” were spread across several different policies. Several definitions were incomprehensible to the average reader; for example, the definition of sexual misconduct referenced offences under the Criminal Code, without actually describing those offences.

While “sexual harassment” was a defined term under the umbrella term “sexual misconduct,” there was no separate definitions of “sexual assault” or “consent.”

Justice Deschamps viewed the definition of sexual harassment as unduly narrow, such that it failed to capture some conduct that any reasonable person would find to be harassing. For example, to be harassment, behaviour had to be directed at a specific person. This meant that under the CAF’s definition, making generalized discriminatory comments or jokes was, strictly speaking, permissible!

Further, Justice Deschamps called out the uselessness of a CAF term, that of “adverse personal relationship.” Policy defined this as a romantic relationship that could have a “negative effect on the security, cohesion, discipline or morale of a unit” if not disclosed.4  The result of this vague definition was that few relationships were disclosed at all. Justice Deschamps noted that this failed to protect lower ranking members involved with those of higher rank.

Complaint processes were ineffective and revictimizing: Justice Arbour found that the CAF’s complaint processes discouraged reporting.  Victims of sexual harassment were encouraged to first engage in informal dispute resolution such as mediation, which resolution methods are generally inappropriate in cases of harassment and sexual harassment.  Victims then had to go through an administrative investigation by an in-unit leader, and after that, a formal grievance process — both adjudicated by persons that victims did not trust to take complaints seriously.

Reports of sexual assault were to be directed to the military police (MP), whose response was described by members as “atrocious”; many members of the MP reacted insensitively, were unaware of resources for victims, and lacked training as to the elements of the offense or what constitutes consent.

Support for victims was lacking: Justice Deschamps noted that there was no centralized source of information for victims about support resources, and that support was available to those in only a few geographic locations. Similarly, there was little information offered as to the various complaint mechanisms available, and in any event, none of those mechanisms were perceived as trustworthy, confidential, or effective.

Justice Deschamps’ Recommendations

Justice Deschamps’ ten recommendations are summarized here as relating to four topics:

  1. Accept that culture change and committed leadership is required

Justice Deschamps first recommended that the CAF sincerely acknowledge that sexual misconduct was a serious problem within its ranks. She stressed the importance of military leadership’s commitment to engaging a cultural change strategy. A significant proportion of her report is devoted to convincing the CAF a) to take the issue seriously, and b) that the only effective way to deal with it is through a comprehensive culture shift.

  1. Ensure policies are clear, comprehensive, and easy to locate

 Justice Deschamps recommended that:

  • all prohibited sexual misconduct be described in a single policy, with clear, plain-language definitions of sexual harassment, sexual assault, and adverse personal relationships
  • the topic of affirmative consent be added to the policy
  • sexual assault be defined as “intentional, non-consensual touching of a sexual nature”
  • the definition of harassment no longer require the offending conduct to be directed at a specific person and that the proviso “in the workplace” be removed
  • all romantic relationships between members of different rank be presumed “adverse” until and unless they are disclosed
  1. Complaint procedure should be simple and include appropriately trained recipients

Justice Deschamps recommended that the sexual harassment complaint procedure be streamlined and always start with a grievance, with an in-unit investigation to take place only where necessary, and without pressure to participate in informal dispute resolution.

Justice Deschamps also recommended that all sexual assault reports be directed to upskilled military police, and that sexual assault victims be given the option of having their case handled by civilian authorities.

  1. Establish and empower an independent, expert resource centre

The functional core of Justice Deschamps’ recommendations was to establish an independent centre of accountability to address sexual misconduct.

She envisioned a centre that would be independent of the chain of command and that would have the expertise required, and be given the CAF resources and information necessary, to allow the centre to drive accountability, evidence-based policy and process, and meaningful training and culture change initiatives.

Specifically, Justice Deschamps recommended the centre be assigned responsibility for:

  • receiving reports of sexual misconduct;
  • providing support to victims;
  • helping victims understand and navigate the policies and complaint procedures;
  • becoming the military’s research arm with respect to sexual misconduct;
  • monitoring of accountability (complaints and what happens to them);
  • being the single, comprehensive tracker of incidents and outcomes; and
  • coordinating and monitoring training.

After the Deschamps Report – What the CAF said it was doing

When Justice Deschamps’ Report was released, the new Chief of Defence Staff, General J. Vance – the top-ranking leader in the Armed Forces at the time – quickly issued public statements about his commitment to eliminating sexual misconduct, saying:

I will not allow harmful and inappropriate sexual behaviour within our organization, and I shall hold all leaders in the CAF accountable for failures that permit its continuation. 5

Thereafter, the CAF acted quickly to try to effect the cultural change described in the Deschamps Report. It stood up a military-wide operation, Operation Honour, tasked with implementing the Deschamps recommendations and taking other actions to remediate the CAF’s sexualized culture. Operation Honour focused on amendments to policies, education, training, and additional member support, and started with day-long workshops with senior leadership meant to impress upon them the commitment required.

As part of Operation Honour, the CAF (finally) sought, through surveys by Statistics Canada (“Stats Can”), accurate data as to real prevalence of sexual misconduct in the ranks.

The difference in response to the anonymous Stats Can survey as compared to internal CAF reporting was stark: the first Stats Can survey in 2016 reported that 25% of female members (and almost 4% of males) said they had been sexually assaulted at least once since joining the CAF. Half the incidents reported by women identified a higher-ranking member as the perpetrator. Most CAF members reported witnessing or being victims of sexualized behaviour, including sexual jokes and discriminatory conduct, with women being targeted twice as often as men.

Over the following few years, the CAF published regular updates as to the implementation of Operation Honour and the Deschamps recommendations. Each report contained positive descriptions of the many initiatives being taken, including standing up an independent Sexual Misconduct Response Centre, a review and update of relevant policies and the harassment complaint procedure, training for military police as to how to respond to reports of sexual assault, a new anti-misconduct training regime, and a comprehensive system to track reported incidents.

But despite the CAF’s efforts, there were few indicators that headway was being made:

  • Stats Can’s 2018 survey reported no change in the rate of sexual assault, and only a slight reduction in the rate of other sexual misconduct.
  • A 2019 survey of military college students found that the self-reported sexual assault rate among female students was double that of civilian institutions.
  • In 2021, Justice Morris Fish released a report of his assessment of the military justice system. He devoted an entire chapter to how that system failed sexual assault victims and contributed to the CAF’s high sexual misconduct rate. He said his consultations confirmed that:
    • [T]he nature, extent and human cost of sexual misconduct in the CAF remain as debilitating, as rampant and as destructive in 2021 as they were in 2015.6

Why were the CAF’s efforts having little discernable impact? And if the military had the benefit of the recommendations from the assessments by Justices Deschamps and Fish, why did it retain Justice Arbour to conduct yet another assessment? Read the second post in this three-part series to find out!

1 The Honourable Marie Deschamps, C.C., Ad. E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (March 27 2015) (“Deschamps Report”), online: Government of Canada < https://www.canada.ca/en/department-national-defence/corporate/reports-publications/sexual-misbehaviour/external-review-2015.html>, at page ii.
2 Ibid.
3 Ibid, at page iii.
4 DAOD 5019-1, Personal Relationships and Fraternization (last modified 11 July 2014), online: Government of Canada <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/defence-administrative-orders-directives/5000-series/5019/5019-1-personal-relationships-and-fraternization.html> at articles 2 and 5.1.
5 General J. Vance, August 2015
6 The Honourable Morris J. Fish C.C. Q.C., Report of the Third Independent Review Authority to the Minister of National Defence (April 30, 2021), online: Canadian Observatory for Military Justice Reform <https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf> at vi.

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