Operation HONOUR discussion

[FJAG]

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.

You misunderstood entirely what I was saying. I wasn't arguing that alcohol was a defence. What I said was that:

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.

The point being that a sexual act could be either a completely innocent act or it could be a crime. A judge has to work his/her way through a "he said/she said" situation in order to find out which side of the line the case falls on. On top of that the evidence is often less clear than one would like because often the parties were intoxicated to some extent.

The simple fact of the matter is that the legal standard to move a prosecution forward is one of whether or not there is a "reasonable likelihood of conviction" and the standard of proof for conviction is one of "beyond a reasonable doubt." It's a standard that has evolved over centuries under the simple theory that: "it's better for a hundred guilty persons to go free than for one innocent one to be convicted."

It seems to me that you are advocating that regardless of how weak or strong a case is it should be prosecuted in order to make the victim feel good. That, IMHO, is a very dangerous path to take. Besides the fact that we screw up a whole lot of innocent people by putting them through a trial where we know it won't lead to a conviction, all we'll end up doing is making our conviction rate look even lower than it is.

It's a bit silly to suggest that the JAG himself should tell the victim that. The JAG is separated from the Director of Military Prosecutions and the prosecution arm of the CF and I would expect that in any case where a complaint has been made that an explanation is provided to the victim by either the CFNIS/MPs (in the event that no charge is laid) or by the prosecutor (if a plea agreement is entered into or a charge stayed). That said, neither CFNIS/MPs or prosecutors need the victim's consent. Their actions are based on the rule of law and prosecutorial standards.

Much of the remainder of your comparison between the CF and civilian side is pure conjecture and most of that is baseless. I'm not saying that there isn't room for improvement--there almost always is--but your position flirts dangerously with the proposition that we need to make it easier to get a conviction so that the statistics look better.

:cheers:


<<<  Mod Edit: to link previous discussion from 2002 to current  >>>

 

[NavalMoose]

Newsflash....young men drink beer

 

[daftandbarmy]

Reminds me of something I read,

"The military has long known that the soldier's morale is sustained not just by plenty of badges and medals and by ample access to alcohol and, when possible, non-infectious sexual intercourse but by the irrational conviction on the part of each soldier that he has the honor of serving in the best squad in the best platoon in the best company in the best battalion in the best regiment etc. in the army."

Wartime: Understanding and Behavior in the Second World War
By Paul Fussell

And....

"We aren't no thin red 'eroes, nor we aren't no blackguards too,
But single men in barricks, most remarkable like you;
An' if sometimes our conduck isn't all your fancy paints,
Why, single men in barricks don't grow into plaster saints;
    While it's Tommy this, an' Tommy that, an' "Tommy, fall be'ind",
    But it's "Please to walk in front, sir", when there's trouble in the wind,
    There's trouble in the wind, my boys, there's trouble in the wind,
    O it's "Please to walk in front, sir", when there's trouble in the wind."

https://www.poetryloverspage.com/poets/kipling/tommy.html

 

[dimsum]

This is my point, if you change the culture, do you spoil the recipe that makes these organizations effective war machines?

To be fair, seeing those BCGs on the dude on the right (with the 10th Mountain patch on his shoulder) makes *me* want to drink to forget.

 

[daftandbarmy]

To be fair, seeing those BCGs on the dude on the right (with the 10th Mountain patch on his shoulder) makes *me* want to drink to forget.

It's how the Infantry keeps its troops fatalistic....

 

[Good2Golf]

Damn, scooped on the BCG comment!  :'(

Gotta hand it to the good ole U.S. of A. -- nobody does ocular prophylactics like Uncle Sam! 

G2G

 

[winnipegoo7]

I don’t know if this has already been posted but it seems a MS NavComm has been convicted of sexual assault and ill treatment of a subordinate for an incident that occurred in 2015 on HMCS ATHABASKAN. Sentencing will occur Monday.

Does anyone know what the ´normal’ punishment is for sexual assault?

https://www.google.ca/amp/www.cbc.ca/amp/1.4572981

 

[JesseWZ]

I don’t know if this has already been posted but it seems a MS NavComm has been convicted of sexual assault and ill treatment of a subordinate for an incident that occurred in 2015 on HMCS ATHABASKAN. Sentencing will occur Monday.

Does anyone know what the ´normal’ punishment is for sexual assault?

https://www.google.ca/amp/www.cbc.ca/amp/1.4572981

There are too many factors to list for to determine the "normal" punishment of sexual assault (and really any offence). What the Judge will do, is weigh aggravating and mitigating factors, look at case law presented by the Defense and Crown (each supporting their position on the sentence) and weigh precedent with the determining factors or principles in a sentence. A judge has to consider several sentencing principles when bringing about a sentence (Deterrence, Rehabilitation, Denunciation, and Separation from society). Often, the first paragraph of sentencing decisions (written or oral statements by the judge outlining how they got to a particular sentence) begin with some variation of the line "Sentencing is one of the most difficult things for a Judge to undertake". Sentencing is to be individually tailored to the offender.

A good (if open source) summary of Sentencing Principles can be found:

https://en.wikibooks.org/wiki/Canadian_Criminal_Sentencing/Purpose_and_Principles_of_Sentencing

In short, sentences range dramatically for each offence and it is entirely dependent on the unique aspects of the case and offender.

 

[Halifax Tar]

Hey got 22 months in jail and a release from the CAF.

 

[winnipegoo7]

Jesse and HT thanks for the info.

 

[McG]

http://www.cbc.ca/news/politics/military-finds-multiple-gaps-in-support-for-victims-of-sexual-misconduct-1.4573315

One of the shortfalls is:

no mechanism by which a member facing harmful or inappropriate sexual behaviour could complain to the chain of command without automatically triggering an investigation

I have actually seen this.  Victims were disinclined to come forward because they believed, under the current tone, that the response would be completely out of proportion to the offence.  I don’t have enough observations to say there is a trend, but I hope someone is watching to ensure there is not a trend of victims choosing to do nothing because the only alternative is to let the system go nuclear.

 

[OldSolduer]

We had a case of a couple of the troops sexually harass some other soldiers. Of course, our immediate response was to investigate and if charges were warranted then charge. The victims stated that they would rather mediate a solution as it was within their control. Made sense to the CO and I so that’s what we did.

 

[brihard]

Hey got 22 months in jail and a release from the CAF.

Will that be served in Edmonton?

 

[mariomike]

Will that be served in Edmonton?

I don't know. But, I read this,

QUOTE

Canadian Forces Service Prison and Detention Barracks

Personnel convicted of more serious offences are considered to be in “prison” and upon completion of their sentence they are released from the military.They can be  held at the CFSPDB up to a maximum of two years less a day. Serious offenders with sentences longer than two  years are transferred to the Canadian federal prison system after serving 729 days, to complete their sentence in the civilian prison system, followed by release from the Canadian Forces.
http://mdlo.ca/publications/canadian-forces-service-prison-and-detention-barracks/

END QUOTE

 

[Halifax Tar]

Will that be served in Edmonton?

No idea, they didn't say on the news.

 

[Oldgateboatdriver]

Here is Note B to QR&O's Vol II, Article 104.04:

(B) Service prisoners and service convicts typically require an intensive programme of retraining and rehabilitation to equip them for their return to society following completion of the term of incarceration. Civilian prisons and penitentiaries are uniquely equipped to provide such opportunities to inmates. Therefore, to facilitate their reintegration into society, service prisoners and service convicts who are to be released from the Canadian Forces will typically be transferred to a civilian prison or penitentiary as soon as practical within the first 30 days following the date of sentencing. The member will ordinarily be released from the Canadian Forces before such a transfer is effected.

In the present case, with 22 months imprisonment and release from the CAF, he would fall squarely in the purpose of the note and is therefore likely to be treated as it specifies: i.e. he will be released from the CAF and transferred to a civilian (in this case a Provincial prison, since it is less than two years) jail.

 

[mariomike]

For reference to the discussion, see also,

HMCS ATHABASKAN crewmember charged with drug/weapon offences, 11 Aug 16
https://army.ca/forums/threads/123798/post-1515669.html#msg1515669
"Why is he serving this sentence in provincial jail, vice Edmonton?"

Discussed from Reply #2 to Reply #10.

 

[Strike]

Looks like he's going to serve the time in New Glasgow.

 

[211RadOp]

Sgt Kevin MacIntrye was found not guilty in Halifax.

http://www.cbc.ca/news/canada/nova-scotia/military-policeman-acquitted-of-sexually-assault-1.4725775

 

[pbi]

Here is Note B to QR&O's Vol II, Article 104.04:

(B) Service prisoners and service convicts typically require an intensive program of retraining and rehabilitation to equip them for their return to society following completion of the term of incarceration. Civilian prisons and penitentiaries are uniquely equipped to provide such opportunities to inmates. Therefore, to facilitate their reintegration into society, service prisoners and service convicts who are to be released from the Canadian Forces will typically be transferred to a civilian prison or penitentiary as soon as practical within the first 30 days following the date of sentencing. The member will ordinarily be released from the Canadian Forces before such a transfer is effected.



In the present case, with 22 months imprisonment and release from the CAF, he would fall squarely in the purpose of the note and is therefore likely to be treated as it specifies: i.e. he will be released from the CAF and transferred to a civilian (in this case a Provincial prison, since it is less than two years) jail.

Having spent a bit of time in the various Federal  institutions back when we used to do the Pen Recces, and living in Kingston (which had nine prisons in operation in the area when I moved here in 2007), I utterly disagree with the rationale behind the quoted paragraph.

I doubt very much that incarceration in a place like KP or Collins Bay or Millhaven does very much to "reintegrate" any inmate back into society, Corrections Canada propaganda to the contrary. I think that para is based on an extremely narrow and badly outdated idea of what military people are like. 

It might (maybe...) have had some relevance when the military consisted of people who mostly lived either in shacks or PMQs, and lacked the education or the desire to function outside that environment, and would have no idea what to do with themselves once they got out.  IMHO that isn't the majority of the CAF population today. Most people live off base and have involvement in the civil community to varying degrees. Why, some military people are even married to civilians!!

If we are putting them in prison as a way to punish them, or if they are too dangerous to release, fine. But using the Federal prison system as a way to integrate released service members back into civilian life makes no sense to me, at all. There are programs to do that, if people avail themselves of them.