Author Topic: Sexual Assault & Sexual Misconduct in the CF  (Read 383487 times)

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Offline Lightguns

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1150 on: July 13, 2017, 13:48:46 »
Jesus, Shilo again!!!  What is wrong with that base, the water, the air, what?  Including animals that the 7th or 8th sexual assault.
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Re: Court Martial taking time - Sexual Assault
« Reply #1151 on: July 13, 2017, 14:31:27 »
That narrows it down.

Does the Supreme Court ruling about the accused' right to a trial within a reasonable time apply here? FJAG needs to weigh in here.

They definitely do apply.

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Offline Brihard

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Re: Court Martial taking time - Sexual Assault
« Reply #1152 on: July 13, 2017, 15:14:02 »
That narrows it down.

Does the Supreme Court ruling about the accused' right to a trial within a reasonable time apply here? FJAG needs to weigh in here.

I caught that too. He was charged 20 July, 2016 so they're coming on a year. The Jordan decision gives them 18 months to get this trial done, with delays form the defense not contributing to the time elapsed. Six months is not a lot of time in the criminal justice system.
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1153 on: July 13, 2017, 18:56:17 »
Jesus, Shilo again!!!  What is wrong with that base, the water, the air, what?  Including animals that the 7th or 8th sexual assault.

Remember this is an alleged sexual assault. All we have to go on is one side of the story through the media. The accused hasn't had his day in court to answer the charges.

Offline dapaterson

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1154 on: July 13, 2017, 21:35:07 »
Other than his summary trial before the superior commander...
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1155 on: July 13, 2017, 22:37:18 »
Other than his summary trial before the superior commander...

I presume you mean the appearance before the superior commander to have a determination of jurisdiction made and an election for court martial made (if available).

Technically that's not a "summary trial" but a "pre-trial procedure" within a "summary proceeding". The "summary trial" would only start subsequently if the superior commander has jurisdiction and the case is one where the individual has elected not to proceed by court martial or is one of the offences where no election to CM is available.

Sorry. Sometimes I get a little anal about these things.  ;D

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Offline dapaterson

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1156 on: July 13, 2017, 22:44:18 »
News reports say he was fined 500 for a bail violation at summary trial.  As a Capt, that could only be done by his superior commander.

Please forgive me for out analling a lawyer ;)
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1157 on: July 13, 2017, 23:33:15 »
News reports say he was fined 500 for a bail violation at summary trial.  As a Capt, that could only be done by his superior commander.

Please forgive me for out analling a lawyer ;)

I'm not that familiar with his case and didn't know about the bail issue; BUT, if he was fined for a bail violation, then that would be a separate matter than standing trial for the sexual assault and therefore PuckChasers admonition that "the accused hasn't had his day in court to answer the charges" was both correct and proper.

I therefore reject your "out analling" and stand by mine.  ;D

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Offline putz

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1158 on: July 16, 2017, 10:44:13 »
I'm not that familiar with his case and didn't know about the bail issue; BUT, if he was fined for a bail violation, then that would be a separate matter than standing trial for the sexual assault and therefore PuckChasers admonition that "the accused hasn't had his day in court to answer the charges" was both correct and proper.

I therefore reject your "out analling" and stand by mine.  ;D

 :cheers:

IMHO he got more at the summary level for the breech then he would have standing before a military judge for the breech.  I have seen it before where someone, facing similar charges, breeched multiple times (x5), appeared before a Military Judge (where it wasn't deemed that he should be held in custody turns--- out that breeches in the NDA are handled differently than civilian court surprise surprise) and then had all charges relating to the breechs dismissed at court martial.  To be fair though he did get 4 plus years in jail so there was that......   

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1159 on: July 16, 2017, 16:03:59 »
IMHO he got more at the summary level for the breech then he would have standing before a military judge for the breech.  I have seen it before where someone, facing similar charges, breeched multiple times (x5), appeared before a Military Judge (where it wasn't deemed that he should be held in custody turns--- out that breeches in the NDA are handled differently than civilian court surprise surprise) and then had all charges relating to the breechs dismissed at court martial.  To be fair though he did get 4 plus years in jail so there was that......   

The civilian and military courts do handle them very differently.

In both cases an application for revocation of bail is very different from a charge for an offence based on whatever the act that breached the bail condition was.

Back many years ago, just after we pulled our troops out of Germany but before the base was fully shut down I was assigned to prosecute DND's first bail revocation application for an individual who was found guilty of a sexual offence on a minor and who was released on bail pending appeal and who, while on bail, was found in possession of drugs on two occasions.

In civilian courts the revocation application is a pretty straight forward summary proceeding that rarely takes more than fifteen minutes but under section 4 to QR&O 118 of the QR&Os, the crown's application to "cancel the direction for release for a breach of undertaking" shall be conducted as a court martial with all the applicable procedures etc available.

In my particular case we had set aside five days for the hearing in Germany but had to first contend with four days of pleas in bar of trial by the defence to find the whole process unconstitutional. They lost but we wasted time and I was barely able to get in as witnesses the two German customs officers who caught our boy at the border with hash coming back from Switzerland. We ended up having to finish off the hearing in Ottawa for four days (because by them most of my witnesses [except the US Army's drug analyst] and the accused had returned to Canada)

The one major difference between this hearing and a court martial was/is that the accused need only be found to have breached his undertaking on a preponderance of evidence (rather than beyond a reasonable doubt). When our guy's bail was revoked, he pulled his appeal and served out his time.

Again, I'm not familiar with the Shilo case. QR&O 118 applies to bail after a conviction by a court martial which I would think is obviously not the case here. There are provisions relating to pre-trial release from custody with or without conditions (QR&O 105) but again, those are procedural steps which are quite different from a new charge being laid for whatever the event that was considered the breach of condition was. Since there appeared to be a fine, there had to be a whole new charge.

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Offline putz

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1160 on: July 16, 2017, 21:43:15 »
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. 

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1161 on: July 16, 2017, 22:32:20 »
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.

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Offline Hamish Seggie

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1162 on: July 16, 2017, 23:30:40 »
FJAG I enjoy your posts. Keep it up!

And I said this to a lawyer????

Cheers!


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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1163 on: July 17, 2017, 00:22:50 »
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

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Offline mariomike

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1164 on: October 06, 2017, 13:14:07 »
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
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1165 on: October 23, 2017, 05:58:56 »
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.
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1166 on: October 23, 2017, 09:18:32 »
Not a really well written article.


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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1167 on: October 23, 2017, 15:26:35 »
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.

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Offline Navy_Pete

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1168 on: October 23, 2017, 16:35:41 »
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.

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1169 on: October 23, 2017, 16:41:06 »
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.

Offline Blackadder1916

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1170 on: October 23, 2017, 17:40:27 »
. . .  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 ******* locked away.
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1171 on: October 23, 2017, 18:04:35 »
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.

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Offline putz

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1172 on: October 23, 2017, 18:13:37 »
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.

Offline Blackadder1916

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1173 on: October 23, 2017, 20:40:18 »
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.
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1174 on: October 23, 2017, 20:43:56 »
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?

Quote
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.

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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.
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