Wanted, new ways of dealing with sexual misconduct

Where sexual misbehaviour is concerned, U.S. leaders aren't just talking, they're acting, Neil Macdonald writes. Maybe it's time for Canada to get to that "prescriptive point."

Where sexual misbehaviour is concerned, U.S. leaders aren't just talking, they're acting

Chief Petty Officer John Tate talks to patrons at the San Diego naval base bowling alley as part of his nightly patrols. The patrols are among a number of new initiatives the armed forces is implementing to try to stop sexual assaults by changing the military's work-hard, play-hard culture. (Lenny Ignelzi / Associated Press)

"National conversations" can get tiresome quickly.

Newscasts and op-ed pages get turned over to an incandescent issue, and a kind of mass group therapy begins, brimming with blandishments about thoughts and prayers and courage and blame and responsibility and catharsis.

When this sets in, the stampeding forces of social media overwhelm the news agenda. Editors just give up and stand aside.

But then the "teachable moment," as it's called here in the U.S., passes and the national conversation sputters. The order of things is not easily changed.

Remember the slaughter of schoolchildren at Sandy Hook Elementary school in Connecticut two years ago?

For a time, that outrage was the very last straw, and something absolutely, unquestionably had to be done about America's gun habit. And then precisely nothing was done. Nothing.

Canada's current national conversation has, for the past few weeks, repeated much of what we already knew about sexual misconduct: that victims of assaults or harassment tend to keep what happened to themselves, rather than going to authorities.

I won't bother re-listing all the reasons here. Let's just stipulate that there are several, and they're perfectly understandable, and that rapists and molesters and harassers get away with their behaviour to a disproportionate degree.

Pretty clearly something should be done to encourage more reporting.

But some of the solutions, if that's what they are, that have so far emerged from Canada's emotional post-Jian Ghomeshi fog are hard to take seriously.

Peter Mansbridge interviews CBC executive vice-president Heather Conway about the Jian Ghomeshi affair. (CBC)

Some have suggested that people who come forward with complaints should all be presumptively believed.

Well, I'd presumptively believe my daughter — actually, I'd unflinchingly believe in my daughter's innocence if she was caught standing over a corpse with a dripping dagger in her hand — but presumptive belief is no way to fashion public policy, and certainly no basis for journalism.

It necessarily involves presumptively assuming someone else's guilt without even hearing the other side of the story. And there's always another side of the story.

The prescriptive point

Watching all this from Washington, I find it remarkable how uninterested the Canadian government seems in this issue.

Nine months ago, two Conservative ministers even squashed a mild recommendation from a Commons committee that Parliament work with Status of Women Canada to raise "awareness of the issue of sexual harassment in the workplace."

Why that would be objectionable is beyond me.

What Canadians have instead from their lawmakers is the spectacle of the NDP blasting Liberal leader Justin Trudeau for moving quickly and publicly to suspend two of his MPs after an NDP legislator came to him with accusations of sexual misconduct.

Better, says the NDP, to have kept it all quiet. Seriously?

Canada is "not at the prescriptive point yet," Canadian women's rights advocate Sandy Garossino told me over the weekend. "That's one of the missing pieces."

Well, the Americans certainly seem to be at that point, and have been for awhile.

Where sexual misbehavior is concerned, America's leaders aren't just talking, they're acting.

Liberal Leader Justin Trudeau was taken to task by the NDP last week for divulging details about sexual harassment allegations. (Sean Kilpatrick/The Canadian Press)

In Congress, legislators from both parties are taking on the U.S. military, which seems unable to control sexual harassment and assault in the ranks.

In 2012, 26,000 soldiers reported unwanted sexual contact, up from 19,000 in 2010.

Most of the victims were men, but the fight to effect serious change in the military has been led by female legislators, particularly the no-nonsense Senator Kirsten Gillibrand, a Democrat from New York.

There are also several class-action civil suits before the courts.

So far, the Pentagon has successfully resisted Gillibrand's plan to take responsibility for investigation and prosecution away from military commanders, and give it to civilian police and courts.

But if it can't change its culture, it appears inevitable that it will have to surrender to civilian authority. The conversation about sexual assault in the military has simply been grinding on too long for nothing to happen.

The White House, meanwhile, is using civil rights legislation to address what women's rights advocates call a "rape culture" on American campuses.

The administration has initiated legal proceedings against dozens of universities.

Last week, Princeton, one of the most prestigious schools in the country — with one of the most comprehensive codes governing sexual conduct — accepted censure for mishandling three complaints of sexual misconduct by students against other students.

The university, in Washington's view, imposed too strict a test on the evidence, using the standard of "clear and persuasive" rather than "preponderance of evidence," more commonly known as balance of probabilities.

In other words, the administration believes complainants should not have to make a clear and persuasive case that they were assaulted or otherwise harassed. It should be enough that it probably happened.

Beyond reasonable doubt?

Whatever you think of giving universities or other institutions that sort of extra-judicial power, and I find it somewhat troubling, the administration is at least leading.

The Vancouver-based Garossino, a former Canadian prosecutor, wants similar action here.

She's uncomfortable with proposals to restrict the rights of the accused in criminal court, given the Crown's powers and advantages.

But she suggests the provinces could make it much easier for victims of sexual assault to sue, rather than go through the criminal justice system, with its "beyond a reasonable doubt" bar, which, in he-said-she-said cases, can make conviction nearly impossible.

In civil court, the test is preponderance of evidence, which, as O.J. Simpson found out, is a whole other deal. He was acquitted of murder in a criminal trial, but his ex-wife's family nonetheless sued him and won, making his life financially miserable.

The Toronto Star's Antonia Zerbesias, an old friend and journalistic colleague who helped start the globally viral #BeenRapedNeverReported hashtag on Twitter, has similar reservations about watering down the rights of accused in criminal court.

But what would be wrong, she asks, with creating a confidential national database recording all sexual assault complaints, even if they aren't pursued criminally?

The idea would certainly ring privacy alarms. But it might also turn up patterns.

There are sensible solutions. But they require elected leaders to lead, or at least make some suggestions.

Of course, men could just stop unwelcome behaviour. I've never understood where it comes from. But there I go with the group therapy stuff.

About the Author

Neil Macdonald

Opinion Columnist

Neil Macdonald is an opinion columnist for CBC News, based in Ottawa. Prior to that he was the CBC's Washington correspondent for 12 years, and before that he spent five years reporting from the Middle East. He also had a previous career in newspapers, and speaks English and French fluently, and some Arabic.


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