A military panel that looked into the case of two Canadian special forces soldiers who both claimed to be victims of a sexual assault has experts calling into question the military's ability to investigate complex and sensitive cases.
The investigation centred on an incident that occurred in a two-bed hotel room shared by two military members — one a sergeant, the other a corporal — while on a training course in Tennessee last year.
Both soldiers claimed to be victims, though only the sergeant was charged with sexual assault.
He has since unanimously been found not guilty by a five-person military panel.
But the laying of the charge itself outed a LGBTQ member.
"[My client] remains bewildered at why he was prosecuted — and perhaps persecuted — as he was the victim," said Michael Johnston, the sergeant's defence lawyer.
He suggested this may be an example of a misunderstanding that took on "epic proportions."
– Defence lawyer Michael Johnston
This case should have never been investigated and prosecuted the way it was.
Johnston said his client has been forced to come out as bisexual in order to defend himself against the allegation and has faced a "host of emotional challenges." The sergeant's own family was not aware of his sexual identity, he said.
"This case should have never been investigated and prosecuted the way it was," said Johnston.
CBC News is not identifying either soldier; the complainant's identity is protected by a publication ban and naming the accused could also identify the complainant.
In an email to CBC, the Department of National Defence said that "concern for the complainant" was central to the judicial process and the corporal's needs were "treated with the greatest of care."
Now that there has been a resolution, it said, Canadian Special Operations Forces Command (CANSOFCOM), which is responsible for all special forces, will work to ensure an acceptable working environment for both parties.
"This case and its judicial process will not impact the complainant's desired career opportunities or overall path," wrote CANSOFCOM public affairs officer Cpt. Jennie Derenzis.
The Canadian Forces National Investigative Unit (CFNIS) traditionally investigated allegations of sexual assault and misconduct in the ranks. But earlier this month, it was announced that the military would turn over the investigation and prosecution of such cases to civilian police and courts.
There are approximately 145 cases involving sexual offences that have the potential to be transferred. Currently, there are 21 soldiers in rank who have scheduled court dates to be tried on sexual assault charges.
The military said it does not have information on how many cases involve LGBTQ members.
2 potential victims, 1 charge
The alleged assault dates back to February 2020, when four Canadian special-ops soldiers were sent to Cookeville, Tenn., for a two-week training course with their American counterparts.
The sergeant and the corporal roomed together, as they considered each other friends and had deployed together on prior missions.
On the evening of Feb. 11, four soldiers went out for dinner around 6 p.m. and visited four bars before returning to their hotel just after 3 a.m.
In their testimony, the sergeant and the corporal said they consumed about 10 drinks each over the course of nine hours. Neither said they felt intoxicated, nor did they notice each other slurring their words.
Before going to bed, both said they each drank a bottle of water, took two Advil and ate a banana to fend off a potential hangover. They climbed into their separate beds, each wearing boxer shorts.
About a half-hour later, the sergeant said he was awakened by a naked man "spooning and grinding" against him. He said the corporal whispered in his ear: "Let's smash this girl."
The sergeant is bisexual, but had not told his family or his fellow soldiers. At that point, he said, he reciprocated what he thought was tacit consent and reached behind him to stroke the corporal's penis.
Military police do not have the required independence or the required experience to do this kind of thing.
Retired major-colonel Michel Drapeau
The corporal, on the other hand, testified he had no recollection of how he got into the sergeant's bed, but said the force of the groping woke him up.
"The next memory I have is waking up — a man's hand is grabbing my penis and squeezing until it hurt. He had my penis and was pounding it on my pubic bone," the corporal testified.
"I thought it was a dream or my girlfriend was in my bed doing it to me; it was a very disgusting act."
Court heard that the sergeant stroked the corporal two times for approximately five seconds.
The corporal said he yelled, "What the f–k?" and jumped back into his bed, where he lay prepared to defend himself.
"I was ready to apply violence to a situation if the situation required violence," he testified.
He also testified that he saw the sergeant masturbating "like a chimpanzee" following the incident. The sergeant denies masturbating or using force during the touching.
Unable to sleep, the corporal said he drafted an email to his superiors, then went down to the lobby to ask for a separate room.
The next morning, the sergeant was informed by his colleagues he had been accused of sexual assault. Later that day, the military sent two other soldiers to accompany the sergeant and corporal home on a flight to Ottawa.
Ten months later, following an investigation by military police, the sergeant was charged with one count of sexual assault.
Mediation more appropriate, lawyer suggests
During the investigation, it emerged that the corporal has a history of sleepwalking. He testified that before moving to Ottawa from the Maritimes, he had wandered into his girlfriend's mother's laundry room in the middle of the night and woke up naked on top of her dryer.
In defence of his client, Johnston said the nude corporal was the one who violated the sanctity of his sergeant's bed, touching the sergeant without his consent. In court, Johnston argued that the sergeant would have been within his right to react with "physical force to repel the uninvited intruder," though he instead chose to reciprocate by touching the complainant.
Johnston said he feels charges were laid against his client because of the public pressure on the Canadian Forces to show results as part of its Operation Honour campaign, aimed at stamping out sexual misconduct in the military.
He said he believes mediation could have been used to resolve this case.
"Sometimes, misunderstandings can quickly take on epic proportions — and that's perhaps what transpired here," he said. "When you take the potential for incarceration and conviction off the table, it creates a better opportunity for each side to ultimately better understand the other person's perspective and move forward in an understanding light."
According to Michel Drapeau, a retired major-colonel and expert in military law, military tribunals should not be trying sexual misconduct cases.
The lack of independence from the chain of command can leave cases vulnerable to interference from superior officers and military police lack the expertise to investigate sexual misconduct, he said.
"Military police do not have the required independence or the required experience to do this kind of thing. They should not be given this type of responsibility," he said.
Allegations of sexual misconduct by military members should be put in the hands of civilian police, who have officers trained to investigate the complexity of such cases, said Drapeau.
Initial hesitation to proceed
During the investigation, both soldiers were assigned to duties where they would not come in contact with each other.
Transcripts of the interviews conducted by military police make clear that there was an initial reluctance to proceed with charges.
"This wasn't consensual and I was the victim.… We spent seven months together — like, we were buddies. I don't want this to kind of ruin his life or anything. But, like, this cannot be swept under the rug. So I don't know, really, where I'm standing right now," the corporal said in his interview with military police two days after the incident.
Both soldiers have since received counselling.
In his interview with investigators in November 2020, the sergeant said he felt "betrayed by a friend." They had previously deployed together, he noted, and their relationship centred around talking about "nerdy tech stuff" and playing video games.
The sergeant told police he was worried the corporal's version of events could potentially go up the chain of command and that he would be construed as a "monster."
"I have a feeling, because it's a male-male thing, that I could be treated differently," he said.
Now that he's been cleared, Johnston said his client wants to return to his regular duties.
But he could still face challenges down the road. Following the verdict, the sergeant will be subject to an administrative review of his career by his superior officers.
Todd Ross, a former naval officer who was expelled from the navy during the military's LGBTQ purge, suggests the sergeant could also face discrimination now that he's been outed.
While he may not be ostracized from his unit, Ross said, the sergeant's career advancement could be at risk.
"When it gets to the personal, you never know who the officer will be, pushing him forward for promotion or pulling him back from it," said Ross.
"There is potential for influence [by] people who are homophobic. A lot of superiors will look past it toward merit, but I think there is still a lot of room for systemic biases."
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