Fear, reprisals and blame follow female soldiers who report sexual misconduct

"Extremely distraught" — those two words represent the only mention in court martial documents of the impact on a female soldier whose intimate image was shared among Hamilton reservists.

That short description barely begins to convey how humiliating and violating such an action can be, according to an advocate for women who suffered sexual trauma in Canada's military. Marie-Claude Gagnon says the consequences can be far-reaching and often end with female soldiers sacrificing their careers and leaving the military to escape stigma.

The sparse mention also points to what critics, including the auditor-general in a recent report, say is the inadequate role that victim support has occupied in the way the military handles sexual misconduct.

This week, CBC Hamilton is examining military discipline among area regiments, how the military handles misconduct and the issues it raises.

Part 2 in a series examining military discipline for units based in the Hamilton area

• Part 1 | Hamilton reservist disciplined for sharing intimate picture of female soldier

• Part 3 | Swearing, drinking, mishandling weapons: How Hamilton-area soldiers get into trouble

The court martial documents, along with discipline records obtained by CBC News through Access to Information laws, reveal members of the Argyll and Sutherland Highlanders of Canada were charged for viewing and swapping the photo that showed the female reservist's breasts and face through Snapchat.

The woman, a reservist in a different unit, had sent the picture to a corporal she was in a relationship with. Her expectation was that it was between them.

Four soldiers from the Hamilton-based regiment were disciplined, including the corporal she was in a relationship with, with who showed the others the photo and two master corporals who asked to see it.

​The most severe punishment was handed out to Cpl. B. Miszczak, who took his own picture of the image and shared it on social media. He was demoted to private and recommended for release from the Forces.

'People will know who she is'

The incident described during the court martial would be "devastating," but it's one that's all too common, according to Gagnon. She's a former member of Canada's naval reserve and founder of It's Just 700, an organization that supports women who were sexually abused while serving in the Canadian military.

"I've heard of circumstances where people have pictures and they would make copies at work and then they would masturbate on them and say 'I had a good time with your picture today.'"

What makes this case especially harmful, said Gagnon, is that the soldier's face is exposed along her body.

"People will know who she is," the former reservist explained.

"That would make it very uncomfortable for a person to go back to work, especially if it's mentioned to her. She may want to relocate to a different place and that would affect her postings."

Military judge mentioned 'humiliation'

Military judge Lt.-Col. Louis-Vincent d'Auteuil, who oversaw Miszczak's court martial, also acknowledged how quickly technology and careless actions can "create situations of humiliation, harassment and psychological violence."

But the impact on soldiers who suffer sexual harassment and abuse goes beyond embarrassment and a sense of betrayal.

Gagnon describes the Canadian Forces as a "close-knit community" where even switching units or moving to a base across the country isn't enough to ensure you won't end up working, or even sleeping and eating across from your abuser.

[Victims] are quietly looking at other people when they do speak. Is everybody ostracizing them for reporting? Has there been reprisals on them?- Marie-Claude Gagnon, It's Just 700

In most cases, that leaves little option except leaving the Forces and giving up everything a soldier has worked for, she said, making it even less likely for them to come forward.

"You know that reporting sharing of your personal pictures will lead you to lose your work and be hated by all your peers that you've known for … years," she explained.

"When you leave the military you don't just lose your job, you lose your career, you lose all your friends … your circle. You don't have any support anymore."

Forces says more misconduct being reported

Commodore Rebecca Patterson, director general of the Canadian Armed Force's (CAF) Strategic Response Team on Sexual Misconduct, says the Forces have taken steps to knock down barriers standing between soldiers and reporting sexual misconduct.

Those steps include more ways to report misconduct and the Sexual Misconduct Response Centre, which was created to supply and proactively promote a range of services for members.

• Military finds multiple gaps in support for victims of sexual misconduct

"We believe the changes we have made through Operation Honour have had a positive impact," she wrote, noting "overall reporting of sexual misconduct incidents has nearly doubled since Operation Honour began" and internal data that suggests increasing belief leaders take sexual misconduct seriously.

But the auditor general's report, which reviewed personnel and sexual harassment complaint files connected to 53 sexual misconduct cases, found some members still do not feel safe and supported. In almost 40 per cent of the cases it considered, the victims felt fear, lack of support, reprisals or blame from people including their commanding officer and colleagues.

The report also identified "gaps" that create what's described as a slow, fragmented system not designed with victim support in mind. 

As a result, the auditor general recommended the role of the Sexual Misconduct Response Centre be more clearly defined and called for victim support to be made a top priority with an integrated, national approach to meet the needs of members who experience sexual misconduct.

National Defence has agreed to pursue the recommendations.

Military justice can be 'an escape'

For soldiers who report abuse the cost is high, but Canada's separate military justice system can sometimes offer soldiers found guilty of sexual misconduct an "off-ramp" from the criminal consequences other Canadians could face for the same acts, according to a retired military officer.

Michel Drapeau now works as a lawyer who has represented numerous sex-assault victims.

He points out that by charging members during a summary trail with what amounts to a minor disciplinary infraction, an accused can dodge the threat of a criminal record, along with the dark mark it would leave on their reputation.

"It provides an escape and now, all of a sudden, what is clearly a criminal offence, that should be dealt with under the Criminal Code, now becomes a disciplinary issue."

Drapeau said that means the results in sexual misconduct cases can be "unsatisfactory" for victims and leave them feeling as through their case hasn't been given the attention it deserves.

That feeling is especially acute, according to Drapeau, because complainants in military legal proceedings, such as the soldier whose photo was shared, are the only people in Canada excluded from the country's Victim Bill of Rights, which ensures things such as the right to be kept informed by authorities and to make a victim impact statement.

"It's not that they have lesser rights, they have no rights," he said.

"She serves to defend the charter and our value system, the rights of Canadians, and she is being denied the very rights the rest of us take for granted. It's absurd."

Forces working to improve victim rights

Maj. Doug Keirstead, a CAF spokesperson, responded by saying victims are consulted and their views "considered" by prosecutors.

He added a member convicted of a service offence may have a criminal record, but it depends on the offence and sentence.

"For example, a member convicted of a service offence and sentenced to reduction in rank would have a criminal record."

The military won't comment specifically on whether the charges brought against the soldier who shared the original image and Cpl. Miszczak resulted in criminal records, but the documents obtained by CBC show both men were convicted of service offences and sentenced to reduction in rank.

The two master corporals who were also charged received a sentence of "caution one year," considered a minor punishment that would not result in a criminal record.

It's not clear based on publicly available court martial documents just how involved the victim was in the case against the Hamilton soldiers. Beyond the short description of her reaction to learning her photo had been shared, the only mention they make of her is that she "indicated her desire to see disciplinary actions pursued."

Keirstead said the Forces are working to implement policies that reflect as many rights for victims as possible, including increased victim engagement and specific training for military prosecutors for sexual misconduct cases.

Legislation was also tabled in May with the goal to increase victim rights, including enhanced rights to information, protection, participation and restitution.

• Ottawa overhauling military justice system to give victims a larger role

Drapeau said he's sceptical that legislation will receive royal assent before the election next year.

Instead, the lawyer believes any incident involving sexual misconduct should be dealt with in civilian, criminal court.

Victims are watching when others report

But beyond the negatives on display in the case involving the Hamilton regiment,Gagnon said it also showcases slivers of hope.

The activist said the fact the military seemingly took the incident seriously and brought the most significant charge before a court martial is an "improvement" from years past.

That's important, because other victims are watching.

"They're quietly looking at other people when they do speak, how they are treated. Did they get properly accommodated, is everybody ostracizing them for reporting? Has there been reprisals on them?" said Gagnon.

"It's a hard process. It takes a lot of courage."