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Sexual Misconduct in the Military, Part II – The Flawed Battle Plan

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This is the second of a series of three posts in which I summarize what independent workplace assessments have revealed about the Canadian Armed Forces’ struggle to address sexual misconduct in the profession of arms.

In my first post, you learned about the findings made by the CAF’s first independent workplace assessor, Justice Marie Deschamps, in 2015. I summarized her recommendations as to how to address the CAF’s sexualized culture and high rates of sexual harassment and assault, and I described the steps the CAF reported it was taking to implement those recommendations.

Fast forward to 2021, and the CAF’s efforts did not appear to be working. Statistics Canada surveys and further workplace assessments reported that the rate of sexual misconduct within the Forces was not decreasing.

As it turns out, one reason for lack of progress may be that the CAF failed to meaningfully implement any of Justice Deschamps’ recommendations. This failure, the extent of which you will discover by reading this blog post, was revealed by Justice Louise Arbour’s workplace assessment report, published in May 20221. This blog post ends with some takeaways for your organization as to how to make best use of a workplace assessment as part of its anti-harassment strategy.

After you digest this post, read the last post in this series to learn about the Arbour recommendations, with which the CAF is now grappling.

The Arbour Report

The retaining of Justice Arbour to conduct the CAF’s third workplace assessment in seven years resulted from the same external pressure that precipitated its 2014 retainer of Justice Deschamps: namely, public scandal. In 2020/2021, a cascade of claims of sexual misconduct involving senior officers was reported – including against General Vance himself, who, at the same time as he was giving press conferences about his commitment to implementing the Deschamps recommendations and eliminating sexual misconduct in the military, was having a secret long-standing affair with a lesser-ranking officer.

Having perhaps realized that Justice Deschamps’ mandate, which was limited to reviewing sexual misconduct-related policies and procedures, had been too narrow to allow for a fulsome assessment of the drivers of sexual misconduct in the CAF, the Department of National Defence gave Justice Arbour a much broader scope of review. She reviewed policies, processes, complaint procedures, complaint outcomes (including how complaints were handled by the military justice system), how CAF members are recruited, trained, and promoted, the causes of continued misconduct despite attempts to eradicate it, and barriers to reporting.

Justice Arbour found that sexual harassment and assault is as big a problem within the rank and file as ever, and her 408-page report provides insight as to one reason why: despite the CAF’s reports as to its efforts to fulfill the Deschamps recommendations, Justice Arbour found that none of the recommendations had been meaningfully followed:

Rather than focus on the clear recommendations of the Deschamps Report, the CAF leadership developed a plan with no measurable key performance indicators – oblivious to its own limitations as it attempted to manage and transform issues on which it had no expertise.2

Only minor policy changes had been made: As described in my previous post, Justice Deschamps recommended the CAF consolidate its sexual misconduct policies, add definitions of “sexual assault” and “consent,” and update the definitions of sexual misconduct, sexual harassment, and adverse personal relationship. Six years on, Justice Arbour found the only substantive policy change made by the CAF was the addition of an acceptable definition of consent.

Justice Arbour found that the military policy landscape had actually worsened, in that the CAF issued a guidebook for Operation Honour, its sexual harassment prevention program, that contained definitions that were different than those in the CAF’s policies. As diplomatically stated by Justice Arbour:

In general, it is counterproductive to have non-binding secondary documents that introduce new or different elements to the definition. This only increases the confusion around sexual misconduct, with no certainty as to which document contains the binding or authoritative definition.3

Justice Arbour was particularly troubled by CAF inaction on the Deschamps recommendation that romantic relationships between members of different rank be presumed adverse and subject to mandatory disclosure:

The inaction following the clear and cogent directives given by Justice Deschamps with respect to personal relationships between CAF members is appalling. The existing regulatory framework fails to capture the most problematic aspect of this area, which is the potential abuse of power that may arise when relationships in such a controlling hierarchy are not properly disclosed.

The inertia in bringing clarity to this relatively straightforward matter coincides with the interest of senior CAF members who have the most to lose by regulating this appropriately, and enforcing it accordingly.4

Complaint procedures not markedly changed or improved: Justice Arbour found the CAF did not implement Justice Deschamp’s recommendations to streamline the sexual misconduct complaint process, decrease the emphasis on informal resolution, or remove the primary reporting mechanism from the chain of command.

She acknowledged the CAF made some meaningful efforts to improve complaint procedures. It now offers training in sexual assault investigation and trauma-informed interviewing to all military police and as part of the Military Police Academy curriculum. A subunit within the CAF special investigation unit was created, devoted entirely to sexual assault investigations.

However, despite these efforts, Justice Arbour found that victims still reported feeling revictimized during the investigation process, and suspicion as to the true level of independence and competency of the military police. External lawyers who worked on both military and civilian sexual assault cases reported greater deficiencies in the CAF investigations as compared to those by civilian authorities, and the CAF conviction rate for sexual assault offences remains approximately half of that in the civilian justice system.

Justice Arbour called out one CAF initiative as particularly misguided: as part of its efforts to reduce underreporting of sexual misconduct, the CAF reminded its members of the CAF’s mandatory reporting requirement.  Under this requirement, people who suffer or witness sexual misconduct, but who fail to report it, are subject to discipline. In other words, one of the CAF’s solutions for the underreporting of sexual harassment and assault was to simply instruct victims and witnesses to report it more often.

Justice Arbour noted that, not surprisingly, this edict did not increase reporting. Rather, it had the opposite effect: victims stopped telling anyone about incidents, to save confidantes from having to decide whether to report an incident against the victim’s wishes or face discipline for not doing so.

Independent centre created, but given limited mandate: A key Deschamps recommendation in 2015 was that the CAF establish an independent centre of accountability to address sexual misconduct, including receiving reports, supporting victims, tracking incidents and outcomes, research, and training.

Justice Arbour found the CAF chose not to establish or enfranchise the single, comprehensive centre of excellence recommended by Justice Deschamps.

In partial implementation of the recommendation, the DND established a Sexual Misconduct Response Centre, sitting outside the CAF chain of command. But the SMRC has been given only a fraction of the mandate envisioned in the Deschamps’ report. Justice Arbour found that the remaining responsibilities were distributed amongst a fractured set of new departments that failed to work together to develop or implement a unified, meaningful anti-misconduct strategy.

At first, the SMRC was given only one responsibility: to provide victim support. The SMRC has improved the supports available to victims, but struggles to make them available across the country, in part because the SMRC was set up and staffed only in Ottawa.

The Arbour report details how the SMRC’s mandate gradually expanded to include monitoring CAF progress and providing expert advice on sexual misconduct to the CAF; however, it has never been tasked with the other activities recommended in the Deschamps report: monitoring the outcome of complaints, being the single, comprehensive tracker of incidents and outcomes, and coordinating and monitoring training.

Instead, policy and training development was assigned to a CAF department created specifically for the purpose, and the CAF built a new incident tracking system that is neither comprehensive nor accessible to the SMRC.

Justice Arbour noted that, as incident tracking currently stands, the CAF remains unequipped to make evidence-based, CAF-specific strategic decisions relating to sexual misconduct.

Lack of understanding of what culture change requires: Justice Arbour found that, despite positive intent – on the part of the CAF’s sexual misconduct working groups, if not senior leadership – Operation Honour had not been effective. She writes:

…[T]he scepticism that marked Operation HONOUR is not surprising. The documentary record shows a top-down, Ottawa-led process marked by sporadic flurries of activity and long periods of apparent inaction. I heard numerous stories of cancelled, poorly attended, poorly implemented, or poorly taught training. Many initiatives lacked resources. I heard accounts of Operation HONOUR fatigue and how “Operation HONOUR” quickly became “Hop on Her” and was not taken seriously by large parts of the organization.5

Ultimately, Justice Arbour described the piecemeal steps taken by the CAF in response the Deschamps report as reflecting that the CAF thought culture change could be effected by, for the most part, simply telling its members how they should behave. The CAF initiatives show it lacks understanding of how to effect workplace culture change. Justice Arbour noted:

In none of the initiatives [the CAF] has launched, is there a single reflection on whether its insular, hierarchical structures may have facilitated the abuse of power that characterizes most sexual misconduct. Rather, the focus has been on mapping steps, pathways and activities, and turning to periodic external reviewers (such as Justice Deschamps… and me), whose recommendations are then the subject of lists, charts, inventories and PowerPoint presentations. This formulaic, perfunctory method of operating is ill-suited to the present problem.6

Takeaways for Other Organizations

Even without reading Justice Arbour’s recommendations as to where the CAF should go from here, there are several important lessons your organization can learn from the Arbour report’s review of how the CAF failed to take best advantage of the Deschamps assessment:

  1. Don’t assume that because sexual misconduct isn’t being reported by your workers, it isn’t happening. As described in my first post in this series, until 2014 the CAF was convinced by its own internal reporting that only a small minority of its members were victims of sexual harassment and assault. And as described in this blog post by RT partner Janice Rubin, even though surveys continually show that a significant proportion of Canadian workers have been sexually harassed, the majority of executives continue to claim that sexual harassment is not a problem within their organization. If that claim hasn’t been verified through a comprehensive anonymous survey or workplace assessment, it’s nothing more than a hope.
  2. Do you want your workplace assessor to craft informed, comprehensive recommendations that respond to the whole of the problem? Give them the broad mandate they need. Justice Deschamps’ recommendations had the potential to move the CAF in the right direction, but because her mandate was limited to a review of harassment-related policies and procedures, she was not able to make many recommendations as to systemic operational change.Seven years later, Justice Arbour is the first assessor tasked with looking at the whole of the CAF’s operations. In my next post we’ll review what Justice Arbour has to say about the CAF’s required culture change and how to effect it (and for further thoughts on this topic, click here to read my colleague’s recommendations for effecting workplace culture change).
  3. After carefully selecting an assessor, trust their expertise. Make best efforts to meaningfully implement their recommendations. If the CAF had done this after the Deschamps report, and in particular if it had established the centre of excellence and internal advisement she envisioned, might it have avoided the need for (and expense of) the Arbour assessment?

To read a summary of Justice Arbour’s recommendations as to where the CAF should go from here, stay tuned for my  final post in this series.

1 The Honourable Louise Arbour, C.C., G.O.Q., Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (May 20, 2022), online: Government of Canada <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/report-of-the-independent-external-comprehensive-review.html>

2 Ibid at page 49.

3 Ibid at page 66.

4 Ibid at page 75.

5 Ibid at page 48.

6 Ibid at page 10.

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