By Vincent J. Curtis
We resume the analysis of the Fish Report, Chapter 2, Sexual Misconduct.
Last time, we observed how convoluted the reasoning gets when Justice Fish recommended eliminating the duty to report service offences to the chain of command in respect of sexual misconduct. The rationale of solicitousness towards ‘the victim’ kept the chain of command in the dark and unable to respond to the underlying disciplinary problem in the ranks.
He continued. After saying without proof that victims simply didn’t trust the chain of command, Fish goes on to suggest the SMRC is also untrusted because it’s not fully independent of the chain of command, the VCDS being responsible for its budget. Strengthening the independence of the SMRC, Fish asserts on the basis of SMRC submissions, “would increase victim confidence in the organization.” Sounds like empire-building is afoot at SMRC!
How a private soldier in Shilo develops confidence through Ottawa-level bureaucratic machinations Fish doesn’t explain, but the underlying assumption here is that the victim is some fragile entity fearful of command. Her professional job might involve sticking a bayonet into the guts of some enemy bastard. How can a female combat infanteer reasonably be expected to have what it takes to blow somebody’s brains out when she’s also expected to fall to pieces reporting a sexual assault goes unexplored. But never mind; Fish’s reporting option is supported by Justice Deschamps (passim), the Deputy Minister, the JAG, the SMRC, and “experts in the field” – none of whom are warriors.
Fish finally comes to realize the rationale of special pleading leads to complications after he turns to the duty to report of witnesses. Removing the duty from witnesses, “might foster a climate in which members remain passive in the face of misconduct.” Well, yeah! The principle of special pleading is hanging out there, and if applicable to sexual misconduct, why not to other offenses? It’s hard to contain a principle like passivity.
While maintaining the duty to report on witnesses “would help find and punish the perpetrators…on the other hand, preserving the duty to report on witnesses might deprive victims of their autonomy, as they would be drawn into the investigative process against their will.” Fish reached a vicious circle. Prepare to punt
The SMRC has recommended that the removal of the duty to report should not apply (the removal being removed!) where there exists “a risk of imminent harm, harm to children, national security.”
At this point, Fish, having realized his position is untenable, punts the ball thusly:
Recommendation #70: An exception to the duty to report incidents of sexual misconduct should be established for victims, their confidantes, and the health and support professionals consulted by them. Their duty to report should be retained, however, where a failure to report would pose a clear and serious risk to an overriding interest, which may include ongoing or imminent harm, harm to children, and national security concerns. A working group should be established to include an independent authority and representatives of the [SMRC], military victims’ organizations and the military justice system. The working group should also consider (a) the removal of the duty of witnesses to report incidents of sexual misconduct; and (b) requiring witnesses to report incidents of sexual misconduct to the [SMRC] only.
Try explaining that to Herbie on a basic military training course!
But what happens if a witness reports anyway? Would he or she be committing an offence by reporting an instance of sexual misconduct without the permission of ‘the victim’? The whole edifice created to protect ‘the victim who may not be ‘ready’ collapses if a witness reports the offense to the chain of command.
Other problems for Fish: the breadth of “sexual misconduct.” DAOD 9005-1 misconduct ranges from off-colour jokes to penetrative rape, and Fish treats the entire range with the moral gravity of penetrative rape. Second, ‘victim’ presumes guilt. A ‘victim’ is a complainant until the accused is proven guilty.
This leads to Part 3.
