Military panels should have gender parity, advocate says after sex assault acquittal
A Canadian flag sits on the shoulder of a Canadian Forces member leaving from CFB Trenton, in Trenton, Ont., on Thursday, Oct. 16, 2014. (The Canadian Press/Lars Hagberg)
Aly Thomson, The Canadian Press
Published Thursday, June 28, 2018 9:25PM EDT
HALIFAX -- An advocate for sexual assault survivors is calling on the military to incorporate gender parity on court martial panels, after a five-men panel found a Halifax-based military policeman not guilty of sexually assaulting a female superior officer.
Marie-Claude Gagnon, founder of the military sexual trauma support group It's Just 700, said complainants in sexual assault cases, especially women, would feel more comfortable if there was more diversity on the panel deciding the case.
"Having a five-man panel is definitely not the answer," said Gagnon in an interview Thursday from Ottawa, one day after Sgt. Kevin MacIntyre was acquitted of sexual assault.
"It could be more inclusive, the way they're doing their practice, to make sure it's more equitable -- not equal, but equitable -- and take gender into consideration, especially when they're trying to get more women into the military."
MacIntyre had been charged with sexually assaulting the woman in her Glasgow, Scotland, hotel room on Sept. 27, 2015, during Royal Canadian Navy exercises.
The panel's verdict came less than two hours after military judge Cdr. J.B.M. Pelletier delivered his final instructions.
According to an Armed Forces web site, court martial panels "are selected randomly by the court martial administrator." It says panels serve a similar function as juries in a civilian trial, and must reach a unanimous decision to convict.
Gagnon, a former naval reservist and survivor of sexual violence, noted men outnumber women in the military, so it's almost inevitable that a strong majority of men would be randomly selected for a panel. She suggested the process could remain random but be refined to ensure a more balanced representation, perhaps by having different groups to randomly select from.
"If you want to give at least the impression of being inclusive, the impression of caring for the victim -- because they keep saying their top priority is the victim -- then in that case, make sure that the practices are inclusive," said Gagnon, who acknowledged that sexual assault cases are complex.
In a statement late Thursday, Canadian Armed Forces spokesman Maj. Doug Keirstead reiterated that the process of selecting a panel uses random methodology.
"This process ensures that the accused is tried by an independent and impartial tribunal in accordance with section 11(d) of the Canadian Charter of Rights and Freedoms," said Keirstead in the email statement.
"The military justice system continuously evolves in a manner that complies with Canadian law and Canadian values, including as the result of mandatory periodic independent external review of the provisions of the National Defence Act concerning the military justice system."
He added: "The Canadian Armed Forces remains committed to supporting victims of sexual misconduct, including throughout the court martial process."
Keirstead said there are 93,953 regular force and primary reserve members of the Canadian Armed Forces, which includes 14,424 women and 79,529 men.
During a May 28 standing Senate committee on national security and defence, Sen. Pierre-Hugues Boisvenu asked Canada's deputy judge advocate general of military justice about gender parity on military panels.
"You do understand that it is intimidating for a woman who has been assaulted to appear before a jury consisting solely of men," said Boisvenu, asking whether practices could change so that women are better represented on tribunals.
Col. David Antonyshyn replied: "The chief of staff does not have the authority to order that kind of process. You would have to consult the court martial administrator and the chief military judge and follow a regulatory process in order to do that."
The Defence Department did not immediately return a request for comment Thursday.
The woman, whose name is protected by a publication ban, testified that she told the 48-year-old MacIntyre "no" multiple times, and repeatedly pushed his hand away.
But defence lawyer David Bright argued that the two had consensual sex, and that the woman only told superiors in the days following to cover the fact that she slept with a subordinate and cheated on her husband.
He noted that she didn't make a formal complaint for six months.
And he also took issue with testimony that she couldn't eat in the weeks following the incident, producing an Oct. 11, 2015, Facebook photo showing her sitting before a large plate of food during high tea at a Glasgow restaurant.
The woman said she took the photo to reassure her family back home that she was well during her trip and that she actually ate very little that day.
Pamela Rubin, a sexual violence trauma therapist with the Antigonish Women's Resource Centre, questioned the defence approach.
"This constantly happens in sexual assault trials that the defence throws out a bunch of stuff that perpetuates myths and stereotypes about sexual assault that (can) make people who have not examined those myths and stereotypes previously ... doubt the credibility of survivors," said Rubin.
She said sexual assault survivors often try to create a "facade of normalcy."
"So they're taking pictures with friends and taking pictures in front of a cake, but meanwhile, they're suicidal inside, or they're anorexic and no one is noticing because they're hiding it so well," said Rubin.
During the court martial, military prosecutor Maj. Larry Langlois told the panel that suggesting sexual assault victims need to act a certain way after an assault reinforces "archaic sexual myths."
But Bright told the panel: "I agree we shouldn't concern ourselves with rape myths. We should concern ourselves with common sense."
The military has promised to crack down on sexual misconduct in the ranks since an April 2015 report by retired Supreme Court justice Marie Deschamps found an "underlying sexual culture."
Military police received 193 reports of sexual assault in 2017, more than twice the 93 reported in 2014. There have also been more charges, with 44 in 2016 compared to 24 in 2014.
Rubin also agreed Thursday that decision-makers in such cases "need to be diverse and not 100 per cent from dominant classes of people."