A Canadian soldier who showed a female colleague a picture of his genitalia during a break has been found guilty of conduct to the prejudice of good order and discipline by a Court Martial.
The soldier showed the photo, displayed on his phone, to his colleague while they were on a smoke break inside of his Jeep on a base. They were sitting in the vehicle because the weather was inclement at the time.
He said he trusted the woman, and wanted her opinion because he had been told in past relationships that the size of his penis was not adequate.
“He had become good friends with the complainant and viewed her as very supportive to him,” the Court Martial said.
Different versions of events
The soldier said he was “100 per cent certain” he asked her if she wanted to see the photo before he handed her his phone. He did not think it would upset her, and thought she would give him an honest answer.
But the female soldier’s version of what happened differed.
“We were just chit chatting, talking about probably basic day to day stuff, having a smoke and yeah, that’s when he said he had something to show me,” she said. “And like because we would look up stuff on Reddit and online and whatever, show each other shit all the time.”
When she saw the photo, she was shocked and asked if it was his genitalia.
“After he confirmed, I probably made some comments like, ‘Oh okay, oh all right then.’ You know, well, I don’t know, you just kind of go on autopilot to get out of a situation,” she said.
While she purposely acted like nothing had happened, she had to seek counselling and mental health support to help her move on and focus on her career.
The Court Martial also noted that the male soldier knew at the time of the offence that the sharing at work of intimate or sexually explicit photographs was prohibited. He admitted he knew it was wrong to show the photo; and that he was in uniform and on base at the time of the incident.
“It was one severe incident which had a lasting impact on her,” it said.
Does workplace standard apply to personal vehicle?
He argued that, because he was seated in a private vehicle, he considered it to be a private moment.
“In short, the essence of his position is that the workplace standard did not apply in his personal vehicle,” the Court Martial said. “I have some concerns with this position as he was still at work, on the base, but more specifically in the presence of a professional work colleague and friend who was deserving of the utmost of respect.”
It noted that section 129 of the National Defence Act (NDA) does not require the prosecution to prove the accused had “any intention to adopt conduct that was prejudicial to good order and discipline.”
“It does not matter what his purpose was for showing (her) the photo, nor does it matter whether he intended to cause any harm,” it said. “The Court has found that he knew or ought to have known that his conduct would cause offence or harm. The mere sharing of the photo itself was sufficient to meet that criterion.”
He was found guilty of conduct to the prejudice of good order and discipline contrary to section 129 of the NDA.
For more information, see Cookson R. (Corporal), R. v., 2023 CM 2002 (CanLII)