The Duty Phone Call
You are driving to physical training (PT) early in the morning when the Special Victim Counsel (SVC) duty phone rings. It’s an old-style flip phone with a ringtone that you now, after serving as the sole installation SVC for almost a year, hear in your dreams. You pick up the phone: “Special Victim Counsel, this is Captain (CPT) Schwennsen.” Your greeting is met with silence. You try again. “Special Victim Counsel, can I help you?” A meek voice on the other side says, in a soft voice, “Yes, I got your number from my victim advocate, but I’m not sure if I need your help or not .…” You reassure the caller they have called the right number and collect some preliminary administrative information. Then you ask the awkward question—“Can I please get a short version of what happened? I don’t need many details right now, just whatever you’re comfortable with telling me.” The caller goes silent again. You ask if the victim advocate is with her. She says yes, and puts her on the phone. “Ma’am, we’ve got a penetrative offense that happened just four to six hours ago. I’m at the hospital with her now.” You tell the victim advocate that you’ll be right there; you just need to stop by the office and do a conflict check. You immediately call your Deputy—you won’t be making PT this morning.
The Army SVC Program was born in 2013 as part of the military-wide response to the increased reporting of sexual offenses in the military.1 The SVC represents eligible victims of sexual assault during the military investigative process.2 The SVC’s most important function is to educate victims about the military justice process and ensure that they make well-informed decisions at each junction in that process.3 The SVC attends every interview with Criminal Investigation Division (CID), prosecutors, and defense counsel with the client.4 Additionally, should the case go to court-martial, the SVC may represent the victim at motions hearings concerning issues involving Military Rule of Evidence (MRE) 412—the rape shield law—and 513—psychotherapist-patient privilege.5
The SVC is an expressed-interest attorney; meaning, after educating the client about the advantages and disadvantages of a particular decision, the ultimate choice is theirs.6 A client may decide against participating in a court-martial even if the evidence is strong and the chance of conviction is high. On the other hand, the client may want to push forward even though there are significant evidentiary issues that the government may not be able to overcome at trial. Success as an SVC is not determined by how many clients go through the court-martial process or how many see their offenders convicted. Success is defined by ensuring that each client receives the necessary context about the military justice process and the circumstances of their particular case; only then can they make the right decision for them personally, professionally, and emotionally. If a client ever feels that they will somehow disappoint their attorney with the decision they make, the SVC has faltered.
You meet your new client at the hospital and establish the attorney-client relationship. At least, you establish as much of it as you can in the short timeframe you have in a hospital room before she goes back for the Sexual Assault Forensic Exam (SAFE). When she returns to the nurse for her exam, you tell her to call if you she needs anything—you have another client that needs to do a CID interview, and you’re the only SVC on post.
The CID Interview
You rush over to CID; the interview with your client takes about three hours. Last week, during your appointment, you thoroughly prepped your client for the types of questions the agent would ask and talked about the advantages and disadvantages of giving consent to an extraction of her cell phone. Thankfully, you do not hit any hard bumps during the interview, but you can clearly see the emotional exhaustion in your client’s face. You are glad you helped her set up a behavioral health appointment for this afternoon to help process the emotional toll from the interview.
You grab a quick lunch, then change into your Army Service Uniform for your motions hearing at 1330. The defense has a really good position on this MRE 412 motion, and the evidence is likely to be admitted; but, you think the admission should be limited to avoid confusing the issues for the panel. You can also block any unnecessary humiliation of your client. After hearing both parties argue, you decide there is more to be said, so you offer additional oral argument to the judge. The judge rules from the bench, admitting the defense’s evidence but tailoring it to your exact request. You need to remember to “sanitize” (remove all identifying information) that motion and send it to the other SVC in your region; this judge hardly ever limits MRE 412 evidence.
Your day wraps up with phone calls to CID requesting updates on eight of your cases. Most of them are still in what your Regional Manager calls “investigative limbo”—the months-long period where the client has already interviewed, but CID is still conducting investigative activity based on the client’s statement. You learn that one case just received a probable cause opine from the prosecutor. You reach out to the client to set up an appointment to have the hard discussion about whether he will want to move forward and potentially participate in a court-martial.
Right before you leave the office for the day, you get a phone call from the new client you met at the hospital this morning. She tells you, “I know I probably didn’t say it this morning, but thank you for coming to see me. Your explanation of what was going to happen during the forensic exam really helped got me ready to go in there.” You set up a time to meet with her the next day and hang up the phone. Her small compliment brings a smile to your face, and reminds you why your role as the SVC is vital to the Army military justice mission.
The SVC confronts the trauma caused by sexual assault in the military head-on every single day. Their clients come to them in different emotional states. Therefore, the SVC’s job is to meet the client where they are, give them the necessary legal context, and then guide them to the decision that is right for that particular client. It takes superior interpersonal skills and great fortitude to build rapport with a client that has experienced trauma and to check the attorney’s own personal feelings at the door about any given case. The SVC Program motto is “Vox Victimarum”—the voice of the victim. The key to being a successful SVC is to master the art of first helping the victim find their voice. TAL
1. National Defense Authorization Act of 2014, H.R. 3304, Pub. L. No. 113-66, 127 Stat. 672 (2013).
2. Special Victims’ Counsel for Victims of Sex-Related Offenses, 10 U.S.C. § 1044e(a)(2)(2019).
3. 10 U.S.C. § 1044e(b)(5), (8) (2019).
4. National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 534, 128 Stat. 3367 (2014); Manual for Courts-Martial, United States, R.C.M. 701(e)(1) (2019)[hereinafter MCM].
5. MCM, supra note 4, Mil. R. Evid. 412(c)(2), 513(e)(2).
6. U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures encl. 4, para. 1(c)(1) (24 May 2017) (“The victim’s decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases, including, but not limited to, commanders, DoD law enforcement officials, and personnel in the victim’s chain of command.”).