Lindsay Rodman is the international affairs fellow (Canada) with the Council on Foreign Relations and a fellow with the Canadian Global Affairs Institute.
Earlier this month, the federal government tabled bill C-77, which establishes a Victims’ Bill of Rights in the military that will mirror the protections that already exist for Canadian civilians, with one additional provision: a Victim Liaison Officer to help shepherd the victim through the justice process. This is a laudable step for the Canadian Armed Forces (CAF) as it works to take on the pernicious problem of sexual assault in the military. However, having served in the U.S. military when the United States was struggling with legislation to help tackle the same problem, I wonder whether this bill goes far enough.
Merely mirroring what is available to civilians did not prove helpful in the United States – it was only when we went well beyond what was available to civilians in comparable situations that we started to see some progress. In the United States, having Victim Liaison Officers did not work; we had to give victims their own attorney.
Bill C-77 is a codification of the Victims’ Bill of Rights in the military justice system. While there are many important differences between the military justice system and the civilian criminal-justice system, they are justified due to the exigencies of war and the special requirements that come from living within the military context. As modern militaries tackle the problem of sexual assault, some of those differences have been revealed to be traditional relics, rather than necessities. When it comes to protecting victims and responding to their needs, the military context possibly requires more protection than the civilian world offers.
The military can be an incredibly fulfilling place to work. My own experience in the U.S. forces was overwhelmingly positive. However, some of the characteristics that make the military experience so unique are also those characteristics that can prevent victims of crimes from coming forward, or feeling well taken care of once they do come forward. Issues such as rank, close working and living conditions with the offender, and gender politics can make navigating the justice process difficult and exacerbate trauma for victims.
In the U.S. military, we had a well-established corps of victim advocates, many of whom were licensed clinical social workers, to help victims of sexual assault obtain services and work through the justice process. The fact that they were civilians and the fact that they were not able to advocate in court or with the force of legal argument made victims feel powerless in the process. As such, they clamoured for their own lawyers.
I was dead set against it. The Bill of Rights enshrined in the U.S. Constitution does not envision a third party in criminal trials. The rights of the accused are well understood in the United States, and the assertion of someone else’s rights, by a lawyer, throughout the justice process seemed anathema. I deeply sympathized with the victims in U.S. military sexual-assault cases – as a female Marine it would have been impossible not to. But I also believe deeply in principles of justice and the process, and I feared this would upend the whole system and tip the balance unconstitutionally away from the rights of the accused.
I was wrong. The sky has not fallen. There are still serious questions about implementation of this relatively new legal concept. There is significant litigation in U.S. military courts of appeal trying to sort out when and how the Victims’ Legal Counsels can speak in court on behalf of their clients. But, the system continues to work and the feedback from victims has been overwhelmingly positive.
The U.S. military has a lot of work left to do on sexual assault. The latest numbers out of the Pentagon show reports of sexual assault going up, which the leadership sees as a good thing. Because sexual assault was so under-reported for so long, the first step is to create a system where victims feel safe coming forward. Victims’ Legal Counsel helped to do that. However, as the reports pile up, they serve as an important reminder that there is much more work to be done.
For the CAF, a similar problem may require similar remedies. The provision of lawyers to victims in the U.S. was resource-intensive, and therefore required commitment on the part of leadership. It was a gamble, and a controversial one, but it has paid dividends. C-77 is a good first step, but merely putting military victims on par with civilians may not be a strong enough signal to them that they will be protected and heard if they come forward. A bolder effort may be required if the CAF intends to truly take this problem head-on.