Sexual Assault & Sexual Misconduct in the CF

[FJAG]

I'm just hoping that the review of the Military law/NDA that's being conducted can help correct situations like this and move more towards how civilian courts operate.

That's actually harder to do then it sounds.

Civilian courts - specifically the Superior Courts/Courts of Queen's Bench are what are called courts of inherent jurisdiction which means that they have the jurisdiction to deal with any matter brought before them unless the matter is specifically excluded by legislation. They basically inherit the common law jurisdictions of the British courts from before confederation.

Courts Martial, on the other hand, are inferior courts or courts of limited jurisdiction. These courts have no inherent powers and can only do what is specifically allowed for them to do by legislation. In fact the court does not exist from day to day the way that the superior courts do (although the judges and staff are there full time). A court only comes into existence when it is "convened" which you might remember used to be when a general officer who was a convening authority gave an order convening it. This reaches back to the day when serving officers headed by a president of the court (sometimes assisted by a judge advocate) made all the rulings on both law and fact. There are some powers where a military judge has powers without there being a convening order such as an NDA s 159 custody review show cause hearing.

Things have changed significantly but still, every time that we want to work more like civilian courts, we need legislation to make that possible. Legislative changes come very slowly both because the military is a very conservative type of organization which doesn't rush into change and also because parliament is very slow to allocate time for NDA related matters; we're a low priority unless we're embarrassing the government when suddenly things speed up. The Somalia affair allowed DND to ram through much legislation which had been in limbo for a decade or more.

:cheers:

 

[OldSolduer]

FJAG I enjoy your posts. Keep it up!

And I said this to a lawyer????

Cheers!

 

[FJAG]

FJAG I enjoy your posts. Keep it up!

And I said this to a lawyer????

Cheers!

There's a saying in legal circles: everybody hates lawyers in general but likes their own lawyer.  ;D

:cheers:

 

[mariomike]

Oct 06, 2017

2 military members charged with sexually assaulting other personnel
http://www.cbc.ca/news/canada/nova-scotia/two-armed-forces-members-charged-with-sexual-assault-1.4343319

Separate incidents allegedly happened in New Brunswick this summer and in Halifax in 2014

 

[Halifax Tar]

DND sex assault conviction rate lower than civilian courts

Military prosecutor says offenders being held to account on lesser charges would send an important message

Over the last three years, slightly less than one quarter of sexual assault trials prosecuted by the Canadian military justice system have resulted in a guilty verdict, according to statistics compiled by CBC News.

More often than not, the alleged offenders have pleaded to, or been found guilty of, the lesser charge of disgraceful conduct.

That has raised concern among complainants and lawyers, particularly since the conviction rate is well below that of the civilian justice system.

But the director of military prosecutions said counting the number of guilty or not-guilty verdicts is not an accurate reflection of the effectiveness of the system.

"The rate of conviction isn't a measure of success in any prosecution service, whether it's a military prosecution service or a civilian criminal justice system across the country," said Col. Bruce MacGregor in an interview with CBC News.

http://www.cbc.ca/news/politics/military-sex-assault-conviction-rate-1.4360847

More on link.

 

[SeaKingTacco]

Not a really well written article.

 

[FJAG]

The problem with this article is that it tries to create an issue that the military is not treating sexual assault cases significantly enough by virtue of the fact that the conviction rate is lower than in the civilian courts.

The problem with this argument is that the there were only 17 courts martial for sexual assault in the military within the last three years. That is far too few cases to  provided a statistically meaningful sample. Effectively as few as one more conviction a year would have brought DND to the national average.

The second problem is that there are far too many advocates that are of the view that if charges are laid then a conviction should automatically follow. Sexual assault cases are much more complex then that. When one deals with a stabbing or a shooting, then the requisite elements of the offence are fairly easily indicative of the fact that a crime was most probably committed. With a sexual assault there are the ever present complications that the act probably took place in a haze of alcohol and that, in many cases, it can be argued that the act was consensual and therefore not a crime. Add to that the fact that the standard for conviction is beyond a reasonable doubt and it can be easily seen why criminal prosecutions are often unsuccessful.

If I was to guess, that with the increased emphasis on investigating and laying charges, that the conviction rate may very well go down as ever more difficult and marginal cases hit the courts.

:cheers:

 

[Navy_Pete]

The problem with this article is that it tries to create an issue that the military is not treating sexual assault cases significantly enough by virtue of the fact that the conviction rate is lower than in the civilian courts.

The problem with this argument is that the there were only 17 courts martial for sexual assault in the military within the last three years. That is far too few cases to  provided a statistically meaningful sample. Effectively as few as one more conviction a year would have brought DND to the national average.

The second problem is that there are far too many advocates that are of the view that if charges are laid then a conviction should automatically follow. Sexual assault cases are much more complex then that. When one deals with a stabbing or a shooting, then the requisite elements of the offence are fairly easily indicative of the fact that a crime was most probably committed. With a sexual assault there are the ever present complications that the act probably took place in a haze of alcohol and that, in many cases, it can be argued that the act was consensual and therefore not a crime. Add to that the fact that the standard for conviction is beyond a reasonable doubt and it can be easily seen why criminal prosecutions are often unsuccessful.

If I was to guess, that with the increased emphasis on investigating and laying charges, that the conviction rate may very well go down as ever more difficult and marginal cases hit the courts.

:cheers:

I read through a fair bit of the trial (?proceedings?findings?) on the court martial website over the last six months or so out of curiousity. I think the hard part for a lot of the cases is it becomes a 'he said/she said' issue, so the standard of beyond a reasonable doubt is hard to hit when there wasn't a conviction.  Probably the same as civy courts, but as you raised, 17 cases is not a reasonable sample size, so kind of a meaningless use of the fraction.  I'm assuming in a few of them though they had more than enough for admin action, and would be surprise if a few of them weren't out in the cold afterwards.  The 'not guilty' findings that I saw were pretty clear that it was a burden of proof issue vice not believing something happened.

It was interesting to read though, one of them had some disputing experts on how memory works which the judge slapped down and dismissed that portion as irrelevant. It was pretty professional, but imagined it might have felt like some legal pummeling behind the woodshed.

 

[PuckChaser]

I'd be interested to see how many of those folks convicted of disgraceful conduct had an Admin Review done and were punted, or left quickly to avoid the AR process. At the end of the day, getting rid of the rotten apples in the CAF is the goal, and perhaps those AR results should be released as well as a deterrent. Likely not possible due to privacy laws, but one can hope.

 

[Blackadder1916]

. . .  At the end of the day, getting rid of the rotten apples in the CAF is the goal, . . .

And that perception is one of the elements that makes the CF look bad with this issue.  FJAG may probably come back and correct me, but the difference between the civilian justice system and the military justice system is the goal.  One focuses mainly on the "punishment" of wrong-doers while the other is there to ensure that "good order and discipline" is maintained.  A victim of sexual assault probably cares little that the CF chugs along in proper order, getting rid of those whose behaviour creates problems; what they would probably like is some sort of action involving a rusty cheese knife or, since that is unlikely, having the bastard locked away.

 

[FJAG]

And that perception is one of the elements that makes the CF look bad with this issue.  FJAG may probably come back and correct me, but the difference between the civilian justice system and the military justice system is the goal.  One focuses mainly on the "punishment" of wrong-doers while the other is there to ensure that "good order and discipline" is maintained.  A victim of sexual assault probably cares little that the CF chugs along in proper order, getting rid of those whose behaviour creates problems; what they would probably like is some sort of action involving a rusty cheese knife or, since that is unlikely, having the ******* locked away.

The goals of the system are in fact similar. The civilian justice system is designed to uphold the rule of law, while that of the military justice system is the maintenance of discipline. The military system has a broader scope in that at the lower end it deals with purely disciplinary matters (such as failure to shave or shine boots something which the civilian justice system does not care about) while at the upper end it has the same objectives and processes as the civilian one (ie uphold the rule of law)

While there are procedural differences between how the civilian criminal courts and courts martial operate, the basic fundamentals (rules of evidence, standards of proof, principles of sentencing etc) are basically the same. This creates a bit of a disconnect in some people's mind as between how DND as a corporate entity deals with sexual harassment, assault issues etc and how the military courts do. While DND clearly has a corporate agenda to create a zero tolerance environment for harassment and can further that through administrative processes based on lower standards of proof (generally a civil standard of balance of probabilities) a military court must use the same criminal standards for conviction as a civilian court (beyond a reasonable doubt). This is why, even after a "not guilty" finding in court, a member may nonetheless still be the subject of administrative action.

:cheers:

 

[putz]

The problem with this article is that it tries to create an issue that the military is not treating sexual assault cases significantly enough by virtue of the fact that the conviction rate is lower than in the civilian courts.

The problem with this argument is that the there were only 17 courts martial for sexual assault in the military within the last three years. That is far too few cases to  provided a statistically meaningful sample. Effectively as few as one more conviction a year would have brought DND to the national average.

The second problem is that there are far too many advocates that are of the view that if charges are laid then a conviction should automatically follow. Sexual assault cases are much more complex then that. When one deals with a stabbing or a shooting, then the requisite elements of the offence are fairly easily indicative of the fact that a crime was most probably committed. With a sexual assault there are the ever present complications that the act probably took place in a haze of alcohol and that, in many cases, it can be argued that the act was consensual and therefore not a crime. Add to that the fact that the standard for conviction is beyond a reasonable doubt and it can be easily seen why criminal prosecutions are often unsuccessful.

If I was to guess, that with the increased emphasis on investigating and laying charges, that the conviction rate may very well go down as ever more difficult and marginal cases hit the courts.

:cheers:

Alcohol is not a defense.  Issue I take with that statement is a lot of these "alcohol consent" cases never even the inside of a court martial.  There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction.  I was really hoping that when decision like that were being made it was the JAG that would have to tell the victim, in person, that fact.  Additionally, when charged and convicted under NDA 130 you face a criminal record.  Take that same charge and plead it to a conduct and nothing.  Take it civy side and plead the Sexual Assault to and Assault and Criminal Record.  Honestly you could of committed a sexual assault in the CAF and face not repercussions other than administrative.  For the argument that is enough than also consider that if I walked into Joe Civies workplace and arrested him his employer could fire him on the spot.  Sexual Assaults, should NOT ever see the light of a Court Martial UNLESS it was a deployed operation and NDA 130 is the only means of proceeding.

I'm surprised that no one has focused in on ONLY 17 in the that three year period seeing as how many were investigated and sent for RMP review for sexual assault.  I think a better gauge would be to find out how many were sent to JAG as a SA but came back recommending something else.

I apologize if I'm coming across as harsh but I am very passionate about Sexual Assault investigations.

 

[Blackadder1916]

The goals of the system are in fact similar. The civilian justice system is designed to uphold the rule of law, while that of the military justice system is the maintenance of discipline. . . . .

Perhaps I should have stated that the "perception" of the goals of the two system are different, especially in the eyes of victims, though overall victims of sexual crimes are probably not happy with either.  Anyway, your elucidations on legal matters are always welcome.

The CF is an easy target due to these "perceptions".  As you previously stated the number of courts martial do not make a statistical analysis meaningful.  But when has that ever stopped some media outlets and ex-colonels.  The CF can seem tone deaf to the issue.  Victims of crime and those that advocate on their behalf (regardless of the reason for that advocacy) likely do not care about principles of "upholding the rule of law" or "maintaining discipline", they want someone to pay for the wrong done to them.

 

[armyvern]

Alcohol is not a defense.  Issue I take with that statement is a lot of these "alcohol consent" cases never even the inside of a court martial. 

Not even if both parties were intoxicated?  I'm curious about this.  Why would only one be held to be capable of decision-making if/when both are smammered?

There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction.

Not a task that everyone could do.  Those who have to do so have my utmost respect.

I'm surprised that no one has focused in on ONLY 17 in the that three year period seeing as how many were investigated and sent for RMP review for sexual assault.  I think a better gauge would be to find out how many were sent to JAG as a SA but came back recommending something else.

I'd think that same statistic would bear itself out in the non-military domain though as well.  How many went to the prosecutors and came back as lesser or non-prosecutable.

 

[SeaKingTacco]

Alcohol is not a defense.  Issue I take with that statement is a lot of these "alcohol consent" cases never even the inside of a court martial.  There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction.  I was really hoping that when decision like that were being made it was the JAG that would have to tell the victim, in person, that fact.  Additionally, when charged and convicted under NDA 130 you face a criminal record.  Take that same charge and plead it to a conduct and nothing.  Take it civy side and plead the Sexual Assault to and Assault and Criminal Record.  Honestly you could of committed a sexual assault in the CAF and face not repercussions other than administrative.  For the argument that is enough than also consider that if I walked into Joe Civies workplace and arrested him his employer could fire him on the spot.  Sexual Assaults, should NOT ever see the light of a Court Martial UNLESS it was a deployed operation and NDA 130 is the only means of proceeding.

I'm surprised that no one has focused in on ONLY 17 in the that three year period seeing as how many were investigated and sent for RMP review for sexual assault.  I think a better gauge would be to find out how many were sent to JAG as a SA but came back recommending something else.

I apologize if I'm coming across as harsh but I am very passionate about Sexual Assault investigations.

I get that you are passionate about this, but what is the solution without also endangering the charter rights of the accused, who remains innocent until proven guilty? Is the Prosecution Branch supposed to take every allegation of sexual assault to a court martial, regardless of the strength of the evidence just...because?

I share the goal of a sexual assault free CF, but I do not see how we get there by violating the charter or by bogging down the court martial system even more.

I would imagine that in some (most? Nearly all?) of these cases where there is even a hint that the allegations have some substance, there is an alternate charge laid or admin action is taken. None of which shows up easily in the facile manner the CBC treated this serious issue.

 

[McG]

From the previously quoted article:
http://www.cbc.ca/news/politics/military-sex-assault-conviction-rate-1.4360847

...

More often than not, the alleged offenders have pleaded to, or been found guilty of, the lesser charge of disgraceful conduct.

...

... between April 1, 2014, and March 31, 2017, there were 17 courts martial where the accused faced one or more charges of sexual assault.

Those resulted in four guilty verdicts, eight not guilty findings, four cases in which charges were stayed and one case that was withdrawn.

...

So, of the 8 not guilty findings, how many cases saw a guilty finding on a lesser included or alternative charge?  The first paragraph above would seem to imply at least half were lesser convictions, would it not?  Does any one have a link to the source document?

Also, because the military has various lesser charges unavailable to a civilian prosecutor, is it possible a military prosecutor will prush to trial with things a civilian would not because there is greater opportunity for something to stick?

 

[FJAG]

From the previously quoted article:
http://www.cbc.ca/news/politics/military-sex-assault-conviction-rate-1.4360847So, of the 8 not guilty findings, how many cases saw a guilty finding on a lesser included or alternative charge?  The first paragraph above would seem to imply at least half were lesser convictions, would it not?  Does any one have a link to the source document?

Also, because the military has various lesser charges unavailable to a civilian prosecutor, is it possible a military prosecutor will prush to trial with things a civilian would not because there is greater opportunity for something to stick?

I don't have the source documents per se but you can get the actual cases through the Chief Military Judge's website. As an example the most recent case listed from Oct 2017 is a case of exactly this nature where the individual pleaded guilty to Misconduct and the sexual assault charge was stayed (it had to be because the charges were laid in the alternative). In that case the complainant voluntarily hugged the accused but he then put his hands on her buttocks and lifted her up a few inches for the hug. While she had consented to the hug she had not consented to the hands on the buttocks and the accused readily admitted his guilt both to the police and by pleading guilty:

https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/231908/index.do

I'll leave it to you to look through the remaining cases for those three years. Most of them should have the decisions on line.

:cheers:

 

[Jarnhamar]

[quote author=putz] There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction. 
[/quote]
I'd say being falsely accused and treated like you're guilty is worse.

 

[RCDtpr]

Alcohol is not a defense.  Issue I take with that statement is a lot of these "alcohol consent" cases never even the inside of a court martial.  There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction.  I was really hoping that when decision like that were being made it was the JAG that would have to tell the victim, in person, that fact.  Additionally, when charged and convicted under NDA 130 you face a criminal record.  Take that same charge and plead it to a conduct and nothing.  Take it civy side and plead the Sexual Assault to and Assault and Criminal Record.  Honestly you could of committed a sexual assault in the CAF and face not repercussions other than administrative.  For the argument that is enough than also consider that if I walked into Joe Civies workplace and arrested him his employer could fire him on the spot.  Sexual Assaults, should NOT ever see the light of a Court Martial UNLESS it was a deployed operation and NDA 130 is the only means of proceeding.

I'm surprised that no one has focused in on ONLY 17 in the that three year period seeing as how many were investigated and sent for RMP review for sexual assault.  I think a better gauge would be to find out how many were sent to JAG as a SA but came back recommending something else.

I apologize if I'm coming across as harsh but I am very passionate about Sexual Assault investigations.

It's easy to blame RMP etc. however the sad reality is until NIS admits they aren't as good as they think they are, and take steps to rectify deficiencies, files such as sex assaults etc. will constantly be plead down because it's the RMPs only option based on the quality of file presented to them.

Something is better than a withdrawal or acquittal......

 

[putz]

It's easy to blame RMP etc. however the sad reality is until NIS admits they aren't as good as they think they are, and take steps to rectify deficiencies, files such as sex assaults etc. will constantly be plead down because it's the RMPs only option based on the quality of file presented to them.

Something is better than a withdrawal or acquittal......

I would love to hear some specific examples of this. Namely if an RMP finds a fault in the investigation he will come back to the investigator and have that corrected