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Military sexual-assault trials have high acquittal rate despite zero-tolerance policy, study finds

The Globe and Mail with Elaine Craig 10 June 2019

Soldiers tried for sexual assault are acquitted in military courts far more often than defendants in civilian courts who face the same charges, a new report says.

Even those charged with violent sex-crimes are sometimes allowed to plead guilty to minor military offences and then walk away with nothing more than a fine and reprimand.

Elaine Craig, a law professor at Dalhousie University in Halifax, has recently completed the first scholarly examination of the prosecution of sexual assault by the Canadian military’s legal system. She says in her report that since General Jonathan Vance, Chief of the Defence Staff, launched a zero-tolerance policy called Operation Honour in 2015, only one soldier has been convicted by a military judge of sexually assaulting a female member of the Canadian Armed Forces.

A second conviction was overturned on appeal and is now being examined by the Supreme Court of Canada.

During the same period, nine of the military’s 14 sexual-assault trials resulted in acquittals on all charges. That is an acquittal rate of 64 per cent, which is “insanely high,” Prof. Craig told The Globe and Mail in a telephone interview. (The acquittal rate between 2010 and 2018 was 48 per cent.)

By comparison, the acquittal rate for sexual assaults tried in civilian courts was just 5 per cent in the years since Operation Honour began, says her study, which will soon be published in the Dalhousie Law Journal.

She did not suggest reasons for the difference.

Meanwhile, many alleged sexual assaults by members of the Armed Forces are not tried as such, Prof. Craig said, because the accused is permitted to plead guilty to lesser disciplinary offences that are allowed under the National Defence Act, such as conduct to the prejudice of good order and discipline, which does not always result in a criminal record.

It has been nearly four years since Gen. Vance introduced Operation Honour to combat what a study by former Supreme Court justice Marie Deschamps described as a “sexualized culture” within the Forces that is conducive to sexual harassment and assault.

Although the number of military members who say they were sexually assaulted within the past year is virtually unchanged from 2016, Gen. Vance has spoken positively about the way the military justice system handles sex crimes.

 

In June, 2018, he told the Senate standing committee on national defence that the military’s conviction rates “are higher than any other civilian system for both sexual assault and lesser offences.”

Prof. Craig criticized that statement. “It is just inaccurate to say [the military’s] sexual-assault conviction rates are higher” than the rates in civilian courts, she said.

The military did not respond to questions about Gen. Vance’s remarks, but said in an e-mail that a conviction rate is not in itself a complete indicator of success or overall effectiveness of sexual-assault prosecutions.

Sometimes, Prof. Craig said, allowing a guilty plea to a lesser offence is the best outcome – such as when one person slips their hand to a buttock during a consensual hug. But sometimes soldiers are permitted to plead guilty to lesser charges in cases that are much more severe.

In 2017, for instance, 34-year-old Second Lieutenant Antoine Brunelle was convicted of disgraceful conduct after chasing a female colleague into her room at CFB Gagetown and forcibly sticking his hands down her pants three times. He received a reduction in rank and a fine of $2,500.

The military says its prosecutors carefully consider the circumstances of all cases, reviewing options in an effort to ensure justice is carried out, and that sometimes involves a guilty plea to a lesser charge.

But Prof. Craig asks: “How can you sanction with a fine and a reprimand for an aggressive sexual attack and then espouse a commitment to zero tolerance?”

Michel Drapeau, a former military colonel who is now a lawyer in private practice and has acted for both military victims of sexual assault and soldiers accused of the crime, said Prof. Craig’s study lays bare the fallacies of Operation Honour, the military justice system and its principal actors. He said the way the system is handling the cases “impedes progress.”

Operation Honour has been a stated priority for Gen. Vance since he was named to the military’s top job in the summer of 2015. He said at that time that any form of sexual misconduct is a threat to morale, a threat to operational readiness and “a threat to this institution.”

Prof. Craig said her report does not raise doubts about the sincerity of that commitment to reduce sexual offences in the military.

But she points out that Ms. Deschamps, who completed her report on sexual misconduct a couple months before Gen. Vance was named Canada’s top soldier, was explicitly directed not to consider the role of the military justice system.

“Canadians need to better understand why it is that the courts martial system and its adjudication of sexual-assault cases hasn’t been subject to review,” Prof. Craig said. “We need to better understand why the military’s legal system was explicitly excluded from Deschamps’s review.”

Canadians should also be asking why the military’s prosecution service is agreeing to plea bargains in cases like that of 2nd. Lt. Brunelle, Prof. Craig said, adding: “I think there are really important questions to ask about whether or not there’s any reason to have the military running these trials.”