DAOD 5019-5, Sexual Misconduct and Sexual Disorders

1. Introduction

Date of Issue: 2008-09-26

Application: This DAOD is an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF).

Supersession: CFAO 19-36, Sexual Misconduct

Approval Authority: Chief of Military Personnel (CMP)

Enquiries:

  • Director Military Careers Policy and Grievances (DMCPG) (for policy)
  • Director Military Careers Administration (DMCA) (for policy administration)

2. Definitions

sexual disorder (trouble sexuel)

Sexual disorder means any mental disorder of a sexual nature described in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

sexual misconduct (inconduite sexuelle)

Sexual misconduct consists of one or more acts that:

  • are either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature; and
  • constitutes an offence under the Criminal Code or Code of Service Discipline (CSD).


Note - Sexual misconduct includes offences such as sexual assault, indecent exposure, voyeurism and acts involving child pornography.

3. General Principles

CAF Commitment

3.1 Sexual misconduct destroys basic social and military values and undermines security, morale, discipline and cohesion in the CAF. It also reflects discredit on the CAF and is therefore not tolerated by the CAF.

3.2 The CAF is committed to ensuring that all incidents of sexual misconduct are reported, investigated and dealt with as soon as practicable.

Applicant for Enrolment

3.3 A person who has engaged in sexual misconduct may be refused enrolment or re-enrolment in the CAF.

Standard of Conduct

3.4 No CAF member shall engage in sexual misconduct.

Consequences

3.5 A CAF member who engages in sexual misconduct is liable to criminal, disciplinary and administrative action, including release.

Responsibilities of CAF Members

3.6 A CAF member is required to report:

  1. any incidents of sexual misconduct, in accordance with QR&O subparagraph 4.02 (1)(e), General Responsibilities of Officers, or QR&O paragraph 5.01(e), General Responsibilities of Non-Commissioned Members, as applicable; and
  2. an arrest by civil authority immediately to the CAF member's commanding officer (CO), in accordance with QR&O article 19.56, Report of Arrest by Civil Authority.

Reporting of Incidents

3.7 An incident of sexual misconduct shall be reported to:

  1. the CAF member's CO through the chain of command;
  2. the military police; or
  3. the local representative of the Judge Advocate General (JAG).

Other Conduct Deficiencies of a Sexual Nature

3.8 Other conduct deficiencies of a sexual nature, dealt with at the unit level through the CSD or administrative action, or both, include, but are not limited to:

  1. any sexual act between consenting adults in circumstances prohibited under the authority of the CSD;
  2. any harassment in the form of sexual harassment that is prohibited under DAOD 5012-0, Harassment Prevention and Resolution;
  3. any fraternization or a personal relationship involving an inappropriate sexual act between consenting adults that is prohibited under DAOD 5019-1, Personal Relationships and Fraternization; or
  4. any use of DND and CAF electronic networks or computers, to access or distribute any material whose focus is pornography, nudity or sexual acts involving adults over age 18, that is prohibited under DAOD 6002-2, Acceptable Use of the Internet, Defence Intranet and Other Electronic Networks, and Computers.

3.9 The above deficiencies are not dealt with under DAOD 5019-5, Sexual Misconduct and Sexual Disorders.

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4. Process

Action by CO – Report of Incident

4.1 The following table sets out actions to be taken by a CO after a reported incident of sexual misconduct:

A CO shall ...A CO shall consider ...
  • conduct an initial evaluation;

  • consult with the local representative of the JAG to determine the required action in accordance with this DAOD or DAOD 5012-0;

  • contact the military police if the initial evaluation of the reported incident indicates possible sexual misconduct;

 

Note – A unit has no authority under this DAOD to investigate a reported incident of sexual misconduct.

 

  • submit a significant incident report to DMCA, in accordance with DAOD 2008-3, Issue and Crisis Management, if the reported incident is of a serious nature; and

  • inform DMCA directly of every reported incident of sexual misconduct.

  • relieving from the performance of military duty, after obtaining legal advice, any CAF member who has engaged in sexual misconduct (see QR&O article 101.08, Relief from the Performance of Military Duty – Pre and Post Trial); and

  • consulting a medical officer in accordance with CFAO 34-56, Mental Disorders.

Note – Additional information on the responsibility of a CO is set out in the CDS Guidance to Commanding Officers.

Action by other CAF Authorities

4.2 The following table describes the actions of other CAF authorities when an incident of sexual misconduct concerning a CAF member has been reported:

CAF AuthorityAction

Military police

Conducts an initial assessment and determines the requirement for the assistance of the CAF National Investigation Service.

CAF National Investigation Service

Conducts an investigation as required and provides all reports related to the incident to DMCA.

DMCA

Conducts an administrative review (AR) in accordance with DAOD 5019-2, Administrative Review.

Disciplinary or Criminal Action

4.3 If a CAF member is tried for an offence, the CAF member's CO shall obtain, upon the conclusion of the service tribunal or civil court proceeding, the documents listed in the following table:

If the CAF member is ...obtain the following documents ...

found guilty

  • the sentencing order;
  • the probation order, if any;
  • the prohibition order, if any; and
  • the certificate of conviction and conduct sheet. (See QR&O article 19.61, Certificate Of Conviction and QR&O article 19.62, Action Following Conviction by Civil Authority.)

discharged or found not guilty

  • the court transcript; and
  • the decision of the court.

4.4 The CO shall forward to DMCA:

  1. all the above applicable documents;
  2. a summary of the evidence;
  3. a recommendation, with explanation, as to administrative action that should be taken in respect of the CAF member; and
  4. any other relevant information to assist the AR.

No Disciplinary Action Taken

4.5 If a CAF member is not tried for an offence, the CAF member's CO shall forward to DMCA:

  1. all information concerning the reported incident;
  2. the CAF member's conduct sheet;
  3. the COs recommendation, with explanation, as to administrative action, if any, that should be taken in respect of the CAF member; and
  4. any other relevant information to assist the AR.

Initiating an AR

4.6 An AR shall be initiated and conducted under DAOD 5019-2 for all reported incidents of sexual misconduct by a CAF member.

Administrative Action

4.7 Administrative action may only be taken if there is clear and convincing evidence that the CAF member engaged in sexual misconduct.

4.8 The following table sets out the approval authorities who may impose administrative action after the completion of an AR in respect of a CAF member who has engaged in sexual misconduct:

If the CAF Member's rank is ...the approval authority is ...

brigadier-general/commodore or above,

  • the CDS.

lieutenant-colonel/commander or colonel/captain(N),

  • the CMP; or
  • the Director General Military Careers (DGMC).

private/ordinary seaman to major/lieutenant-commander,

  • the CMP;
  • the DGMC; or
  • the DMCA.

4.9 Before determining appropriate administrative action, the approval authority shall consider all the evidence surrounding the sexual misconduct. In weighing that evidence, the approval authority is required to consider the following:

  1. the CAF member's entire period of service, taking into account the CAF member's rank, military occupation, experience and position;
  2. the facts of the case, including:
    1. the victim and victim's circumstances;
    2. the CAF member's relationship to the victim;
    3. the degree to which the act was intrusive or violent; and
    4. the sentence imposed, if any;
  3. the degree to which the CAF member accepted responsibility for the sexual misconduct;
  4. the degree of incompatibility between the sexual misconduct and the CAF member's retention in the CAF;
  5. whether the CAF member's capacity of leadership is compromised; and
  6. the CAF member's history of referral for initial medical assessment for sexual disorder.

4.10 As a general principle, the appropriate administrative action is one that best reflects the degree of incompatibility between the CAF member's sexual misconduct and the CAF member's continued service in the CAF.

4.11 Administrative action which may be taken is set out in the AR Decisions block in DAOD 5019-2.

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5. Education

General

5.1 The CAF Policy on sexual misconduct shall be made known to:

  1. all applicants for enrolment in the CAF;
  2. CAF members during recruit and basic officer training; and
  3. CAF members on leadership courses.

Education Objectives

5.2 Information for CAF members on the CAF policy for sexual misconduct shall include:

  1. the content of this DAOD, including the meaning of sexual misconduct;
  2. the CAF expectation of a respectful workplace;
  3. the requirement for CAF members in leadership positions to take an active role in providing guidance and information on sexual misconduct; and
  4. the availability of health services for assessment.

6. Treatment and Rehabilitation

General

6.1 The chain of command is responsible for ensuring that a CAF member who has engaged in sexual misconduct and raises suspicion that a sexual disorder may exist is sent for assessment and offered assistance from CAF medical care providers as applicable. A referral is ordered using the form DND 2828, Medical Referral and Certification.

6.2 The Director General Health Services (DGHS) is responsible for the assessment and treatment of medical or psycho-social conditions and treatable behaviours related to sexual disorders, and for follow-up.

6.3 Treatment and rehabilitation available for members of the Reserve Force are set out in ADM(HR-Mil) Instruction 03/04, The Canadian Forces Spectrum of Care. Treatment and rehabilitation procedures do not apply, generally, to:

  1. CAF members of the Primary Reserve on Class "A" Reserve Service; and
  2. CAF members of the Canadian Rangers, Cadet Organizations Administration and Training Service, and Supplementary Reserve unless serving on Reserve Service in excess of 180 days.

Responsibilities of CAF Medical Care Providers

6.4 A CAF medical care provider shall fully describe and explain to the CO of a CAF member, by appropriate means, any medical employment limitations (MELs) assigned to the CAF member in respect of a sexual disorder and any time required away from the workplace for medical reasons.

6.5 The CAF member may consent to the disclosure of other information.

6.6 A CAF medical care provider may be required by law in certain circumstances to disclose information about a CAF member to a third party without the consent of the CAF member.

Voluntary Treatment

6.7 A CAF member who is concerned about medical or psycho-social conditions or behaviours related to sexual misconduct or a sexual disorder is encouraged to voluntarily seek medical services assistance.

Treatment Refusal

6.8 Treatment for medical or psycho-social conditions or behaviours related to a sexual disorder is voluntary, i.e. a CAF member is not obliged to accept treatment. However, a CAF medical care provider shall document any refusal of treatment on the CAF member's medical file and shall advise the CAF member's CO of any continuing MELs.

6.9 Refusing treatment for a medical or psycho-social conditions or behaviours related to a sexual disorder does not preclude:

  1. the CAF member's CO making another mandatory referral for medical assessment at a later date; or
  2. the CAF member volunteering for assessment or treatment at a later date.

Treatment After Release

6.10 Medical treatment by health authorities, other than CAF health services, may be provided after release.

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7. Responsibilities

Responsibility Table

7.1 The following table identifies responsibilities under this DAOD:

The ...is or are responsible for ...

Canadian Forces Recruiting Group

  • informing applicants for enrolment in the CAF of the CAF policy on sexual misconduct.

Canadian Defence Academy

  • ensuring that education on sexual misconduct is set out in the officer and non-commissioned member general specification.

training authorities and designated training authorities

  • informing CAF members of the CAF policy on sexual misconduct, as set out in this DAOD and in any other applicable publication, during recruit and basic officer training, and at all levels of leadership training.

DGHS

  • providing health promotion programs that includes education on healthy sexual behaviour; and

  • providing resources for the assessment, recommendations and treatment for sexual disorders when appropriate.

Canadian Forces Provost Marshal

  • providing DMCA with all military police investigation reports relating to sexual misconduct.

DMCA

  • conducting ARs in respect of sexual misconduct; and
  • informing COs and CAF members through the chain of command of:
    • AR decisions by the approving authorities;
    • the reasons for the decisions; and
    • actions to be taken.

CO

  • taking action as set out in the Process map; and

  • notifying the CAF member and implementing any decision directed by an approving authority after an AR.

CAF medical care provider

  • assessing the CAF member;
  • recommending treatment;
  • establishing a treatment schedule;
  • documenting refusal of treatment;
  • advising the CO of any MELs of the CAF member; and
  • informing the CO:
    • of anticipated absences of the CAF member from the workplace; and
    • that the CAF member has been medically assessed.

8. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

  • Canadian Human Rights Act
  • Criminal Code
  • Code of Service Discipline
  • QR&O article 19.56, Report of Arrest by Civil Authority
  • QR&O article 19.61, Certificate of Conviction
  • QR&O article 19.62, Action Following Conviction by Civil Authority
  • QR&O Chapter 34, Medical Services
  • QR&O article 101.08, Relief from the Performance of Military Duty - Pre and Post Trial
  • DAOD 2008-3, Issue and Crisis Management
  • DAOD 5012-0, Harassment Prevention and Resolution
  • DAOD 5019-1, Personal Relationships and Fraternization
  • DAOD 5019-2, Administrative Review
  • DAOD 5019-4, Remedial Measures
  • DAOD 6002-2, Acceptable Use of the Internet, Defence Intranet and Other Electronic Networks, and Computers
  • DAOD 7002-3, Investigative Matters and References
  • CFAO 34-56, Mental Disorders
  • CDS Guidance to Commanding Officers
  • ADM (HR-Mil) Instruction 3/04, The Canadian Forces Spectrum of Care
  • Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association
  • Form DND 2828, Medical Referral and Certification