Thank you. I'll continue:
For example, unless it is illegal, a seaman must follow the standing orders issued by the vessel’s CO, without questioning whether these are consistent with the upper level policy statements in the DAOD or Guidelines.
The ERA notes that this normative order is significantly different than in the civilian world. In civilian law, there is a clear hierarchy of law, which is vertical and works top down. The most fundamental law, the Constitution, takes precedence over statutes, which take precedence over regulations, which take precedence over policies. Every citizen may question the authority of a government policy, regulation or law if it appears to be contrary to the Constitution. In the military, by contrast, a number of different policy instruments all have the same—horizontal—normative force. This can result in the inconsistent interpretation and application of CAF policies and, in practice, may lead to practices that do not conform to the policies.
Given this difference in the operation of rules, it is all the more important that CAF leadership is appropriately trained in the content and importance of policies on inappropriate sexual conduct, in order to ensure a more consistent implementation of the policies across the organization.
Not surprisingly, given the number of different stages involved in a harassment complaint and the number of steps within each stage, interviewees described the harassment complaint process as confusing and overly complex. In addition, participants raised a number of concerns which highlighted substantive problems with the processes in place to investigate sexual harassment.
7.1.2 Lowest-level Resolution
The ERA heard numerous serious criticisms about the CAF’s policy of attempting to resolve sexual harassment complaints at the lowest level. The purpose of this policy appears to be to allow for the resolution of minor disputes without unnecessarily escalating a complaint, which can be damaging both for the respondent and for the complainant. While this goal is laudable, the ERA found that in fact the policy acted as a major disincentive for complainants to come forward or pursue a complaint. In particular, the policy fails to recognize the anxiety many complainants may feel about having to face their aggressor, and the fact that the imbalance of power that may have given rise to inappropriate sexual conduct may still be at play in the context of “low-level resolution” or mediation. For example, while several resolute female interviewees said that they had been able to speak up about sexually harassing conduct and to confront the perpetrator, many more interviewees indicated that ADR techniques were not appropriate for sexual harassment cases because victims were not comfortable taking a confrontational position, particularly when the harasser was of a higher rank.
Further, the vast majority of interviewees who did take the step of discussing their complaint with supervisors reported that the complaint was not taken seriously. Responses from supervisors ranged from warning the complainant about the negative consequences to their careers if they continued with the complaint, to openly disbelieving the victim. Regardless of the basis upon which the supervisor discouraged the complainant from pursuing a complaint, it is clear that the policy of “lowest-level resolution” is a major impediment to the resolution of sexual harassment complaints and to a change in the overall culture of the CAF.
Furthermore, the ERA heard that the process of attempting to resolve complaints at the lowest level tends to undermine confidentiality—a key concern for most complainants. Lowest-level resolution requires sharing the information with the supervisor, or potentially escalating the complaint through numerous individuals up to the RO. Further, witnesses may need to be interviewed if an investigation is launched. All of which will result in a serious loss of confidentiality as a number of members will necessarily learn both about the details of the incident, and the fact that the victim has made a complaint. As a result, interviewees indicated that they preferred not to report out of fear that their reputations would be damaged, and the stigma that would likely attach. Many victims were also concerned about being labelled as someone who would complain about a teammate, which could result in becoming socially ostracized. Interviewees further reported that harassment incidents are “swept under the carpet” by those higher up in the chain of command. The easy answer from supervisors when learning of a complaint seems to be to just “get over it”.
Ultimately, the ERA found that, despite the good intentions [from] the policy, the pressure to settle a complaint at the lowest level functions to stifle complaints at an early stage and to intimidate complainants so that they will not pursue legitimate concerns. As a result, [the] actual or perceived roadblocks prevent victims from obtaining satisfactory resolution where sexual harassment has occurred, and feeds distrust in the system.
Furthermore, the policy of resolving complaints at the lowest level is inconsistent with the CAF’s zero tolerance policy. This policy is embodied in DAOD 5012-0:
“Harassment in any form constitutes unacceptable conduct and will not be tolerated.”
Because the practical effect of the low-level resolution policy is that complainants are strongly discouraged from pursuing their complaints and incidents of sexual harassment are swept under the carpet, this directly undermines the credibility of the CAF’s zero tolerance policy. Most participants viewed the zero tolerance policy as purely rhetorical, with little connection to the reality on the ground.
In respect to the “Open-Door Policy”, it states:
At the same time that many interviewees reported facing difficulties resolving complaints at the lowest level, the ERA found that attempts to escalate complaints to a higher level were also largely unsuccessful. Although several COs advised the ERA that the CAF has an open door policy, many interviewees described this as an unrealistic option. Too many NCOs are seen as part of the boys’ club and concerned more with protecting the reputation of their unit than supporting [the] victim. Interviewees further reported that, groomed by NCOs, junior officers often turn a blind eye to inappropriate sexual conduct. Moreover, not only is it seriously frowned upon to skip a level in the chain of command, but there also appears to be only a small number of exceptionally open COs who would be prepared to act on a complaint of sexual harassment in a meaningful way when a complainant skips one or more levels of the chain of command.
As a result, the practical reality is that when a member attempts to meet with a CO about a...harassment complaint, the “open door” is in fact guarded by a number of persons who insist on knowing why the CO is being approached. In such circumstances, the possibility of filing a formal complaint with an HA is not a realistic option, nor is the purported right of the complainant to convey his or her concerns directly to the CO or to someone at a higher level. Again, this creates serious impediments to reporting and to the effective investigation and resolution of complaints. It only takes one person in the chain of command to make a complaint disappear. Indeed, an individual who can make a complaint disappear is generally seen as a problem-solver and as appropriately protecting his superior.
Now I want to talk about “Challenges with Using ADR”. It states:
The heavy reliance on ADR techniques in the complaint procedures also raises concerns. The RO Guide suggests that ROs should consider ADR at two different points. First, ROs should consider utilizing ADR techniques early in the complaint process, before the administrative investigation is formally set in motion. Second, if this early attempt at resolution is unsuccessful and a formal complaint is filed, ADR should be utilized after the harassment investigation is concluded. While, theoretically, alternative dispute resolution has certain advantages, a number of critics have suggested that this approach is generally not appropriate when addressing incidents of sexual harassment. As one researcher notes, “(p)lacing the responsibility to confront the harasser on the person being harassed does not work well within the rigid power relations and hierarchy of the military.” Moreover, as a participant commented, the CAF’s ADR service is designed to help restore harmony to the workplace, not to address the broad cultural aspects of inappropriate sexual conduct. This comment was substantiated by many comments the ERA heard from participants in the Review. Indeed, it is not insignificant that although almost 15 years have passed since the adoption of the DAOD 5012-0, the ERA was not provided with any examples in which ADR techniques had been successfully used for sexual harassment cases.
Nonetheless, even if ADR techniques are generally inappropriate in addressing sexual harassment complaints, there may be a limited number of circumstances in which a complainant prefers to address the complaint with the help of a third party mediator—