External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces - Under-Reporting

Marie Deschamps, C.C. Ad.E.

External Review Authority

March 27, 2015

5. Under-Reporting

The CAF has, until now, failed to acknowledge the extent and pervasiveness of the problem of inappropriate sexual conduct. This may be the result of the very low number of complaints that are reported every year. In 2012, for example, a representative of the CAF testified before the Parliamentary Standing Committee on the Status of Women that the CAF Harassment Tracking System had recorded, for the ten-year period beginning in 2002, only 31 complaints of sexual harassment, of which 11 were founded or partially founded. ¹⁰¹ Further, as noted, the JAG reported that only nine charges of sexual assault had been brought before Court Martial in the year 2011-2012. These statistics do not, however, take into account the likelihood of under- reporting, and create a misleading picture of the problem. This, in turn, has had the consequence of shifting attention in the CAF away from the problem of inappropriate sexual conduct and its impact on the organization. Indeed, in releasing the results of the 2012 Canadian Forces Workplace Harassment Survey, the Director General of Military Personnel, Research and Analysis recommended “that attention be placed on addressing personal harassment and abuse of authority in the CAF”,¹⁰² rather than on sexual harassment, given the low rate of sexual harassment reported in the survey.

Although the ERA was not asked to conduct surveys and obtain comparable data, the consistent evidence of inappropriate sexual conduct heard throughout the consultations strongly suggests that a much higher level of incidents occur, particularly of sexual harassment. The ERA can only conclude that there is a very serious problem of under-reporting in the CAF. Indeed, the problem of under-reporting was itself raised by numerous contributors and, as discussed in greater detail below, the ERA heard repeatedly throughout its consultations that victims of both sexual harassment and sexual assault fail to report such incidents for a variety of reasons.

The failure to report both sexual harassment and sexual assault is not specific to the CAF. Indeed, it is well-documented in other military organizations¹⁰³ and more broadly in civilian life. Many of the reasons why CAF members are reluctant to report such incidents, however, appear to be connected to certain cultural norms, some of which have already been described. In particular, participants reported concerns about negative consequences for the complainant’s career, loss of privacy and confidentiality, fear of collateral charges, and a deep scepticism that the chain of command would respond sensitively and appropriately to the complaint. Yet without information about what is occurring on the ground, the CAF is unable to make necessary changes to reduce inappropriate sexual conduct. Improving the rate of reporting is therefore crucial if senior leaders are to understand how policies are implemented and where they need to be improved. Under-reporting is a reality that needs to be understood and addressed if a change of culture and reduction of incidents is to be achieved.

5.1 Impact on Career Progression

First and foremost, the ERA heard that fear of negative repercussions for career progression is one of the most serious reasons why members do not report incidents of either sexual harassment or sexual assault.¹⁰⁴ In particular, a common response to allegations of sexual harassment or sexual assault seems to be to remove victims from their unit, which is generally perceived as punishing the victim. ¹⁰⁵ This is only one of the numerous negative career consequences reported by victims; others included not obtaining a hoped-for posting, not being deployed during the course of the investigation, or being required to miss training.¹⁰⁶ As one contributor summarized, “the consequences of reporting are frightening”.¹⁰⁷

Unfortunately, the ERA found that such concerns are not without reason, and the ERA heard numerous examples of complainants who had suffered retaliation as a result of laying a complaint.¹⁰⁸ Furthermore, despite the fact that the Guidelines provide for third-party reporting (where a third-party may report an incident that he or she has witnessed) and that DAOD 5019-5 and QR&O 4.02(e) and 5.01(e) impose an obligation to report sexual misconduct, third-party reporting is very rare.¹⁰⁹ Some participants even reported having been actively muzzled when attempting to make a third-party report.¹¹⁰

5.2 Lack of Confidentiality

Another major reason victims of sexual harassment, and particularly of sexual assault, gave for their decision not to report the incident is the perceived lack of confidentiality within the chain of command and the unit. ¹¹¹ For victims of sexual harassment, this lack of confidentiality is aggravated by the policy of lowest-level resolution, discussed below, which requires complainants to report the incident to the next person up the chain of command, regardless of whether this individual has any sensitivity about how to handle incidents of sexual harassment. The incentive for those in the chain of command is not to resolve a complaint or to support the complainant, but rather to make the complaint disappear so that it does not tarnish the reputation of the unit or come to the attention of those of a higher rank.¹¹²

For victims of sexual assault, the concern about loss of confidentiality appears to be an even more significant cause of under-reporting. ¹¹³ Victims of sexual assault frequently resist sharing information about what is often a violent and intimate incident, and are particularly concerned about breaches of privacy. Reporting means losing control over information, including who will be informed about the nature and details of the assault. While reporting to civilian police also entails a loss of confidentiality, the consequences do not appear to be as dramatic. When the military police are informed of the incident, the details of the matter are shared with the NIS and the investigation process is triggered, all of which results in the disclosure of details of the assault—including potentially intimate details about which the victim might feel embarrassment or shame—to a number of individuals. In the tight community of a unit or base, rumours begin to spread quickly and the privacy of the victim (as well as of the accused) can be severely impacted.¹¹⁴

These concerns are compounded by a general fear of being judged, not being believed, and of being stigmatized as a victim of rape or other forms of sexual assault.¹¹⁵ Such concerns are frequently reported by victims of sexual assault in Canadian society at large, but may be particularly powerful in the context of an organizational culture that values strength and power, and which can appear unsympathetic to any perceived manifestations of fragility or weakness.¹¹⁶

5.3 Lack of Trust in the Chain of Command

Participants, mostly in the lower ranks, described a number of additional reasons for choosing not to report an incident of sexual harassment or assault. Underlying these concerns is a deep mistrust that the chain of command will take such complaints seriously.¹¹⁷ More specifically, these reasons included:

• pressure not to report;¹¹⁸
• fear of being stigmatized as weak;¹¹⁹
• concerns about being labeled a trouble-maker and as the “person who charged a teammate”;¹²⁰
• concerns about retaliation by peers;¹²¹
• Fear of collateral charges;¹²²
• desire to avoid disturbing group cohesion;¹²³ and
• desire to avoid negative consequences for the aggressor.¹²⁴

Further, in several cases interviewees specifically pointed to the conduct of the NCO as a deterrent to reporting an incident, particularly where the CO had asked the NCO to deal with the practical aspects of the harassment complaints (a common practice).¹²⁵ NCOs are the eyes and ears of the upper levels of the organization and yet they are often viewed as complicit in the problem of harassment.¹²⁶ In particular, not only do NCOs supervise member conduct, but they are also charged with assessing the complainant’s performance. As a result, a victim’s perception about how the NCO will react to a harassment complaint plays a pivotal role in the decision of members about whether or not to report an incident of harassment.

Male victims of sexual assault by other men also appear to suffer dramatically and are even less likely to report the offensive conduct.¹²⁷ Indeed, the ERA heard of incidents of violent sexual attack by men against their male peers,¹²⁸ including gang rape.¹²⁹ As previously noted, these incidents reveal the extent to which incidents of sexual assault may be more about the abuse of power to demonstrate dominance and control, and to ostracize the victim from the group, rather than about sexual attraction. The shame of being viewed as weak, and potentially as gay (in a culture that continues to be affected by strains of homophobia), may inhibit male victims of assault from reporting.¹³⁰

Finally, perhaps one of the most significant deterrents to reporting sexual assault is the actual experience of other victims with the military justice system. Those who make a formal complaint are likely to be required to repeat their statements on numerous occasions, are given little or no guidance or information about how the investigation or discipline process works, and receive no emotional support.¹³¹ As a result, re-victimization and frustration appear to be the standard consequences of reporting. Even more damaging are the stories that circulate of complaints of sexual assault that result in little or no repercussion for the aggressor. ¹³² Faced with the potentially serious career-ending consequences of reporting a sexual assault, and the likelihood that the aggressor will not ultimately receive a meaningful sanction, many victims reasonably decide that a complaint is simply not a worthwhile avenue.¹³³

Underlying all of these reasons is a clear lack of trust in the chain of command, deep scepticism that the system will be responsive to complaints of sexual harassment, and a lack of confidence that leaders will do anything to prevent the negative impact of harassment on members. Interviewees deplored the lack of accountability of those in the chain of command who are responsible for supporting members and protecting their well-being.¹³⁴ Too many participants expressed the view that the chain of command is mostly interested in protecting itself from the negative effect of a complaint on the reputation of leaders in the unit, and is less concerned with protecting the well-being of complainants. ¹³⁵ These difficulties translate into a leadership problem.

5.4 Avenues for Improvement

The ERA heard frequently that the only way to increase the frequency of reporting is to create a reporting mechanism outside of the chain of command.¹³⁶ To clarify, while reports of sexual harassment are made to the chain of command, complaints of sexual assault are currently directed to the military police, not to the victim’s chain of command. However, participants in the consultations generally did not make this distinction. The reason for this confusion may be two- fold. First, one of the first persons a victim initially turns to after an assault (if she makes a complaint at all) is her immediate superior. Second, the military police may not appear to victims to be sufficiently independent from the chain of command. Thus, many interviewees suggested that investigations be conducted by outside investigators in order to improve trust in the complaint process. ¹³⁷ Such an independent body could also improve confidentiality for the members involved, and consistency in the treatment of complaints. ¹³⁸ Interviewees also suggested that an independent advocate should be available to provide support and information for members who have experienced inappropriate sexual conduct.¹³⁹

Many COs and senior officers suggested that any mechanism that could provide support to victims of sexual harassment and assault, while maintaining cohesion within the unit, would be welcome, outside of deployment. ¹⁴⁰ However, some COs also warned about unintended consequences that could flow from utilizing an outside mechanism to receive and investigate complaints, including the “de-responsibilization” of COs, and degradation of the chain of command. ¹⁴¹ Other concerns included the possibility that outside investigators would not understand how the military works, ¹⁴² that the unit has a responsibility to know about any misconduct that occurs, ¹⁴³ and that civilian authorities also have problems appropriately investigating complaints of harassment and sexual assault.¹⁴⁴ Concerns were also raised that allowing anonymous complaints to be laid could result in potential abuses of the system.¹⁴⁵

Even with an outside mechanism, however, it is important to underscore that victims should not have to bear the burden of the complaint process. As much as it is important for the CAF to be advised of incidents of inappropriate sexual conduct, it is ultimately up to the victim to decide whether or not he or she is willing to report such incidents. Whatever the victim decides, he or she should be offered appropriate support to address the harm that has been done. Once the victim’s needs are addressed, the CAF can focus on preventing other occurrences from taking place, in part by imposing administrative or disciplinary measures, or, in the case of sexual assault or criminal harassment, by prosecuting the matter.

The CAF is not the only military organization to be concerned with the problem of under- reporting of inappropriate sexual conduct. Other armed forces have experimented with various models to improve reporting, including by creating a body outside the military organization to receive complaints, provide victim support, develop training programs, and collect data about sexual misconduct. In 2005, for example, the US Department of Defence created the Sexual Assault Prevention Office (SAPRO). SAPRO, which is independent from the chain of command, was created to operate as the single point of authority for the US Armed Forces’ sexual assault policy, including victim support and oversight.¹⁴⁶ One of the most important issues for SAPRO has been the underreporting of sexual assault. To address this, SAPRO created two streams for members to report a complaint: restricted and unrestricted reports. If a member chooses to make a restricted report, no investigation is triggered, but the victim is nonetheless entitled to support.¹⁴⁷ Restricted reports may also ultimately evolve into unrestricted reports if the victim changes his or her mind about pursuing an investigation. In its 2013 annual report, SAPRO observed an unprecedented 50% increase in reporting.¹⁴⁸ This increase may be attributable to an increased willingness of victims to report occurrences.¹⁴⁹

Further to the release in 2012 of the Review on the Treatment of Women in the ADF, the Australian government similarly created the Sexual Misconduct Prevention and Response Office (SeMPRO), which operates outside the armed forces, under the authority of the Department of Defence. ¹⁵⁰ SeMPRO’s responsibilities are to support victims, provide advice and guidance to commanders and managers, implement education and prevention strategy, develop policies, practice and procedures, and monitor compliance.¹⁵¹ Just as with the American SAPRO, the Australian SeMPRO accepts both restricted and unrestricted reports. ¹⁵² Unlike SAPRO, however, SeMPRO accepts reports of both sexual assault and sexual harassment.¹⁵³

In France, sexual assaults that are alleged to have occurred in a military context are referred to the civilian justice system. To deal with sexual harassment complaints, the French government created a new independent office in April 2014, Cellule Thémis. Cellule Thémis has three mandates: (1) providing support for victim and prevention of occurrences, (2) improving transparency, which includes collection of data, and (3) overseeing sanctions (which includes harmonizing sanctions).¹⁵⁴ Cellule Thémis is independent of the chain of command, and instead forms part of the Contrôle général des armées, which is the auditor general for the Department of Defence and the Armed Forces.

In the Netherlands Armed Forces (NLAF), members can use any of three different channels to report incidents of sexual harassment. The first is similar to the present CAF process, whereby victims can address their complaint to their supervisor; a second is an agency independent of the chain of command, but which has representatives in each of the NLAF’s divisions: army, navy, etc.; and the third is an external reporting mechanism outside the NLAF. In the NLAF, “confidants” are available to assist victims by giving moral support and guidance on the harassment complaint process. Generally, “confidants” are members of the NLAF who have volunteered for the role.¹⁵⁵

The trend towards providing outside help to support victims is not limited to the military environment. It is now standard practice for many large corporations to contract with companies specializing in employee assistance to provide a variety of services, such as hot lines, support services, and counselling. Often, employees can also make confidential and anonymous reports of any sexually inappropriate conduct to these organizations.¹⁵⁶

It may take time to rebuild trust between members and the CAF. However, the creation of an independent center outside of the CAF is an important step towards improving reporting rates and should be adopted by the CAF. The ERA therefore recommends that the CAF adopt this best practice and establish an independent center for accountability for sexual assault and harassment. The ERA does not make a formal recommendation with respect to the name of the center, but for the purpose of the Report, the acronym CASAH will be used. CASAH should be responsible for receiving reports of both sexual harassment and sexual assault, and victims should have control over whether the report will or will not trigger an investigation. In either event, the victim should be entitled to receive assistance and support. Further, CASAH should be tasked with prevention, victim support, monitoring of accountability (including follow-up on complaints of both sexual harassment and sexual assault), and conducting research. CASAH should also act as a central authority for the collection of data with respect to sexual and harassment and assault, including the number of reports made, complaints filed and charges laid, the status of investigative procedures, and the outcome of complaints by year, unit and environment. CASAH should produce annual reports.

As discussed below, the ERA further recommends that CASAH be involved in the development and implementation of policies and procedures related to inappropriate sexual conduct, and to the development and implementation of training.

Victims should also retain the option of reporting to the chain of command if they prefer. Not all victims may be comfortable using the same channel for reporting, and it is important to provide victims with a range of options.

A final issue which merits further attention by the CAF is how to create incentives to reward supervisors for taking action to identify and prevent sexual misconduct, and for appropriately sanctioning such conduct when it is uncovered. Incentives should be developed to counter the practice of ignoring, or even participating in, a hostile, sexualized environment, and to encourage leaders to address the problem of inappropriate sexual conduct overall.

Recommendation No. 3

• Create an independent center for accountability for sexual assault and harassment outside of the CAF with the responsibility for receiving reports of inappropriate sexual conduct, as well as prevention, coordination and monitoring of training, victim support, monitoring of accountability, and research, and to act as a central authority for the collection of data.

Recommendation No. 4

• Allow members to report incidents of sexual harassment and sexual assault to the center for accountability for sexual assault and harassment, or simply to request support services without the obligation to trigger a formal complaint process.

101 House of Commons Standing Committee on the Status of Women, A Study on Sexual Harassment in the Federal Workplace, testimony No 50, presented on November 22, 2012
102 CFWRS, Executive Summary, p. iii
103 Rapport de la mission d’enquête sur les cas de harcèlement, agressions et violence sexuels dans les armées, Contrôle général des armées (France), 4 avril 2014, p. 15, Chapter 1.3; SAPRO 2013 Annual Report, p. 8, Review into the treatment of women in the Australian Defence Force, Australia Human Rights Commission, 2012, p. 47; Report of the Defense Task Force on Sexual Assault in the Military Services (U.S.), December 2009, Chapter 4, p. 30
104 Focus groups: female lower rank (several), male lower rank, female reserve, female NCOs (several), mixed gender junior officers (several); Coordinator interviews; Volunteer contributions
105 Focus groups: mixed gender NCOs; Coordinator interviews; Volunteer contributions
106 Focus group: female lower rank; Coordinator interviews; Volunteer contributions
107 Volunteer contribution; other participants commented that reporting is like giving the “kiss of death to your career” (Coordinator interview), “shooting yourself in the foot” (Volunteer contribution), and is a “lose- lose” situation (Volunteer contribution)
108 Focus group: female reserve; Coordinator interviews
109 Coordinator interviews
110 Volunteer contributions
111 Focus groups: female lower rank (several); Coordinator interviews; Volunteer contributions
112 Focus group: female lower rank, mixed gender junior officers; Coordinator interviews
113 Focus group: mixed gender NCOs; Coordinator interviews; Volunteer contributions
114 Focus groups: female lower rank (several); Coordinator interviews; Volunteer contribution
115 Focus groups: female NCOs; Coordinator interviews; Volunteer interviews
116 Focus groups: mixed gender junior officers; Coordinator interviews
117 Focus groups: female lower rank, female junior officers; Coordinator interviews; Volunteer contribution
118 Focus group: female NCOs; Coordinator interviews; Volunteer contribution
119 Focus groups: female junior officers, male junior officers; Coordinator interviews; Volunteer contribution
120 Focus groups: female lower rank, male lower rank; Coordinator interviews; Volunteer contributions
121 Focus groups: female lower rank, male lower rank; Coordinator interview; Volunteer contribution
122 Coordinator interview; Volunteer contributions
123 Focus group: mixed gender junior officers; Coordinator interviews
124 Focus group: female NCOs; Coordinator interview; Volunteer contributions
125 Focus group: female NCOs; Coordinator interviews
126 Focus groups: female lower rank; Coordinator interviews
127 Coordinator interviews; Volunteer contributions
128 Coordinator interviews
129 Volunteer contribution
130 Coordinator interviews
131 Coordinator interviews; Volunteer contributions
132 Coordinator interviews; Volunteer contributions
133 Focus groups: female trainees
134 Focus groups: mixed gender junior officers; Coordinator interviews; Volunteer contributions
135 Coordinator interviews; Volunteer contributions
136 Focus groups: mixed gender junior officers; Coordinator interviews; Volunteer contributions
137 Focus groups: female lower rank, male lower rank; Coordinator interviews; Volunteer contributions
138 Coordinator interviews
139 Coordinator interviews
140 Coordinator interviews
141 Coordinator interviews
142 Coordinator interviews
143 Coordinator interview
144 Coordinator interviews
145 Coordinator interviews
146 United States Department of Defence Sexual Assault Prevention and Response: http://www.sapr.mil/index.php/about/sapr-strat-plan
147 http://www.sapr.mil/index.php/dod-policy/reporting-options/restricted-reporting
148 http://www.sapr.mil/index.php/annual-reports, FY13 DoD Annual Report on Sexual Assault, p. 3
149 http://www.sapr.mil/index.php/annual-reports, FY13 DoD Annual Report on Sexual Assault, p. 45: “A change in reports of sexual assault may reflect a change in victim confidence in DoD response systems. The continuing growth of Restricted Reporting may be a sign that victims view this option as a valuable and trustworthy means to access support while maintaining confidentiality.”
150 Australian Government Department of Defence, Defence Instructions (General), PERS 35-4, Reporting and management of Sexual Misconduct Including Sexual Offences; http://www.defence.gov.au/sempro/about/default.asp;
151 http://www.defence.gov.au/sempro/about/default.asp
152 Australian Government Department of Defence, Defence Instructions (General), PERS 35-4, Reporting and management of Sexual Misconduct Including Sexual Offences, annex A Informations for Victims of Sexual Misconduct ; http://www.defence.gov.au/sempro/reporting/default.asp
153 Australian Government Department of Defence, Defence Instructions (General), PERS 35-4, Reporting and management of Sexual Misconduct Including Sexual Offences, p. 2 and Annex B Definitions
154 Plan d’action contre les harcèlements violences et discriminations, 14 avril 2014, Annex to the Nov. 14, 2014 No 14-03763-DEP/DEF/CGA/THEMIS Note du Contrôleur des Armées pour le Bureau représentation des Étrangers, État-major des armées, Sous-chefferie relations internationales
155 Information concerning the NLAF processes was provided to the ERA by the NLAF with the support of the CAF Director of the Military Personnel.
156 Volunteer interviews; the ERA is also aware that other large corporations, such as Telus and TD Bank, have contracted with companies to manage their personal misconduct policies, including complaints of sexual harassment