In November 2013, the Army began its Special Victim Counsel (SVC) Program with this promise to those in the Army and their family members: if they report being sexually assaulted and request an SVC, they will have a qualified, professional counsel who will help them preserve their rights and who will advocate on their behalf. This commitment was part of a new paradigm in victim advocacy that has no precedent or comparable institutional initiative anywhere in the civilian sector. The program recognized that if our system fails to treat victims with dignity, fairness, and respect, or denies them a meaningful choice about how they will participate in the military justice system, it risks re-victimizing them. Someone who feels re-victimized will struggle with resiliency and be far less likely to participate in a prosecution or disciplinary action than a victim who has an advocate to help ensure the system supports them. While important for victims, this legal representation does nothing to lessen the Army’s long-standing commitment to protect the rights of the accused, which includes providing defense counsel for all military defendants.
Because of its novelty, when the SVC Program began, many were hesitant about the undefined scope of an SVC’s role in sexual assault investigations and prosecutions. Some were concerned about victims’ counsel usurping traditional roles of trial counsel. Others questioned whether SVCs might cause inefficiency or confusion within the military justice system that could outweigh the benefits they provided.
We now have five years of experience and data, derived from Army SVC representation of over 5,000 victim-clients. This five-year milestone provides a prime opportunity to evaluate the challenges and successes of the program, as well as an opportunity to consider ways we can improve it in the future.
The initiation of the Army SVC Program did not occur in a vacuum. It is an extension of evolving American societal attitudes that have increasingly recognized the harmful prevalence of sexual harassment and assault. Beginning in the early 1990s, the military experienced a number of high profile sex assault incidents and negative media reports that highlighted a prevalence of sexual assault within our armed forces. In 2001, the Cox Commission, a panel reviewing the UCMJ on its 50th anniversary, raised concerns about “a near constant parade of high profile criminal investigations and courts-martial, many involving allegations of sexual misconduct, each a threat to morale and a public relations disaster.”1
The Services recognized the serious threat that sexual assault posed to the safety and well-being of individuals, to the cohesion of the force, and to the public perception of the military and its values. This spurred a series of military responses to address the prevalence of sexual assault. While the military earnestly pursued solutions to the problem of sexual assault, progress came slowly. In its FY 2012 Annual Report of Sexual Assault in the Military, the Department of Defense (DoD) noted: “Despite unprecedented attention and involvement from senior leadership, enhanced SAPR policies and training, and outreach to key stakeholders, sexual assault remains a persistent problem in the military. Current efforts to improve the Department’s investigative and prosecutorial capabilities are important, but are not enough to solve the problem.”2 At that time, the gap between the estimated number of service members experiencing unwanted sexual contact and the number of incidents reported, appeared to have increased from prior years.3 The DoD Report noted that victim confidence in the military justice process was believed to influence their decision to report a sexual assault, and ultimately, their decision to participate in the military justice process.4 At the same time, a 2012 documentary film titled “The Invisible War,” presented anecdotal first-hand accounts by victims of sexual assault within the military. The film noted estimates of the number of sexual assaults occurring within the military in 2010 were much higher than the number of incidents actually reported, which was in turn much higher than the number of reports that resulted in convictions.5 The closing credits of the film stated that the Secretary of Defense watched the film on 14 April 2012, and two days later took the step of withholding all decisions in sexual assault cases to O-6 level commanders.
The year 2012 also saw congressional action in this area. Military lawyers had statutory authorization since 1985 to provide general legal assistance services to eligible individual clients, who included service members and their dependents, as well as DoD employees overseas.6 New legislation in 2012 expanded this authority and directed the services to begin providing legal assistance services to sexual assault victims.7 On 9 November 2012, shortly after the new legislation came into effect, the Office of Secretary of Defense/Office of General Counsel issued a legal opinion concluding that this new legislation, taken in conjunction with the 1985 legal assistance legislation, authorized judge advocates to provide representational legal assistance to sexual assault victims in the criminal context.8 This would include attending criminal investigative interviews and interacting with military investigators, prosecutors, and defense counsel. It was within this context that the U.S. Air Force initiated a pilot program for a dedicated contingent of legal advocates for sexual assault victims.
From November 2012 through January 2013, Air Force lawyers developed practice and procedure rules for SVCs and produced a charter document for their program. During December 2012, the Air Force trained sixty of their judge advocates to prepare them to take on the role of SVC. The Air Force drew on the expertise of the National Crime Victim Law Institute (NCVLI), a non-profit legal advocacy organization for crime victims based at Lewis & Clark Law School in Portland, Oregon. The NCVLI helped in the creation of the program and its director was a key part of the training for the first military SVCs.9 The program officially began on 28 January 2013 and Air Force SVCs immediately began representing sex assault victims.
It didn’t take long for these SVCs to have their first significant judicial test. In early 2013, after taking on representation of a rape victim in a case referred to court-martial, an Air Force SVC filed a formal notice of appearance with the trial court in which the SVC invoked limited standing for the victim on any issues involving Military Rule of Evidence (MRE) 412, 513, or 514.10 During the case’s arraignment hearing, the SVC asked the military trial judge, Lt Col Kastenberg, to reserve his client’s right to present argument through her SVC to the court. The trial judge ruled that the victim had a right to be heard on factual matters, but held that the victim had no standing to present legal argument to the court through her SVC on these matters.
After the trial judge denied the SVC’s request for reconsideration on this ruling, the SVC filed a petition with the Air Force Court of Criminal Appeals (AFCCA) for extraordinary relief in the form of a writ of mandamus, seeking to reverse the trial court’s holding. The AFCCA denied the request, citing a lack of jurisdiction to rule on the victim’s request through her SVC. The Air Force Judge Advocate General certified the matter for review by the Court of Appeals for the Armed Forces (CAAF). The CAAF’s holding and opinion in this matter was a significant early step in defining the SVC role and scope in courts-martial proceedings.11
The Court of Appeals for the Armed Forces held that it did have subject matter jurisdiction to hear the matter and issue a decision. The CAAF then held that the victim was not a party to the case. Instead, the victim was characterized as a non-party with “limited participant standing.”12 The CAAF did not issue a writ in the case, but returned it to the trial court with direction to allow the victim to be heard through her SVC on issues involving MRE 412 or 513.13 While the opinion did not go as far as the victim and her SVC requested, it was ground-breaking controlling precedent for all military courts, establishing the principle that although a victim is not a party to the case, she is a limited participant, the SVC is her legal representative, and legal arguments on behalf of the victim through her SVC must be considered by the trial court.
The Kastenberg decision validated the need to respect and protect the rights of sexual assault victims, as well as the appropriateness of giving them a voice through an SVC to advocate for their interests to a trial court. It is important to note, too, that since the CAAF’s Kastenberg decision, significant legislation ensuring victim’s rights has passed, now codified at Article 6b of the UCMJ.14 Article 6b denotes many specific victim rights, and it expressly includes the right of victims to petition military appellate courts for redress.
Meanwhile, feedback on the Air Force SVC Program proved very favorable. By March 2013, there was enough client data for the Air Force to engage the Rand Corporation to conduct victim impact surveys, which showed an extremely high level of client satisfaction.15
Congressional support for continuation and expansion of the SVC Program was strong. In May 2013, senators on the Armed Services Committee (SASC) introduced bipartisan legislation to expand SVC programs to the other services.16 In June, the Air Force Chief of Staff testified before the SASC and conveyed his intent to continue the program for the Air Force.17 He noted that responses from victims receiving SVC support had been “overwhelmingly positive.”18
By August 2014, the Air Force established a charter to make their SVC pilot program permanent. It provided, in part, that Air Force SVCs would enter into attorney-client relationships with victims to promote clients’ individual interests, even if they were in opposition to government interests and “without regard to how their actions might otherwise affect the Air Force as an institution.”19 All Air Force SVCs would be supervised by the Air Force Legal Command, and SVCs would be independent from the command and legal offices in the field that the SVCs supported.20
On 14 August 2013, Secretary of Defense (SECDEF) Hagel directed the secretaries of the military departments to establish Special Victim Advocate Programs with an initial operating capacity by 1 November 2013, and fully established programs by 1 January 2014.21 As part of his Directive, SECDEF noted that each department should establish a program best suited for their Service, indicating that Service programs need not have the same organizational structure or policies. However, he did require that each program provide legal advice and representation to victims throughout the justice process.22
Initiation of the Army SVC Program
A working group made up of leaders from the Army Legal Assistance Policy and Criminal Law Divisions, as well as the Army JAG Corps’ Personnel, Plans, Training and Operations (PPTO) Division, began meeting in July 2013 to plan the Army SVC Program. The Chiefs of Legal Assistance (CLAs) from various Army installations came together in September 2013 to share information and develop a program plan. Among other products, the CLA meeting built the first training model for future SVCs.
In October 2013, The Judge Advocate General of the U.S. Army (TJAG) announced the guidelines for the Army SVC Program.23 As the largest uniformed service in terms of number of personnel, installations, and scope of operations, the Army tailored its plan to draw on its scale and established capabilities to best serve the needs of Army personnel who experienced sexual assault. While the Air Force met its needs though regional SVC offices out of which an assigned SVC would represent victims in the UCMJ process across a designated geographic area, the Army elected to disperse its SVCs to as many installations as possible, allowing SVCs to have immediate face-to-face contact with their victim-clients. The intent was to allow SVCs to advise and advocate for these clients as an integrated, knowledgeable member of the local command and community. The structure of the Army SVC Program also allowed clients to meet with their SVC face-to-face as frequently as required, since they were in the same location. In addition, within the Army, SVCs would also serve as their client’s counsel for all legal assistance issues, ensuring the victim would only have to form one attorney-client relationship with a counsel to represent all their legal interests.
Because eligibility for SVC services would be tied to the client’s ability to receive legal assistance services, it made sense to task legal assistance offices to provide SVC services at their installations. Chiefs of Legal Assistance in SJA offices would supervise SVCs, who would remain a part of their installation or unit OSJA. No new authorizations for SVC positions yet existed, so all SVCs were pulled from the installation legal assistance offices to which they already belonged. In order to mitigate the impact on legal assistance services caused by the removal of personnel for special training and assignment as SVCs, TJAG mobilized twenty reserve judge advocates to provide their services in Army legal assistance offices.24 The Judge Advocate General also authorized SJAs to limit legal assistance services for retired personnel and their family members, if necessary, but directed them to consider mitigating the impact of these restrictions through creative measures such as providing weekend appointments for retirees and drawing on local reserve JAs to provide these services.25 The October 2013 announcement also identified an O-6 judge advocate to serve as the first SVC Program Manager (PM).26 The SVC PM would work alongside the Office of The Judge Advocate General (OTJAG) Chief of the Legal Assistance Policy Division, who had contributed significantly to the initiation of the program up to that point.
The Army JAG Corps identified training of new SVCs as a priority, and announced an October 2013 SVC certification course for the initial forty-five Army SVCs, so they could be operational by 1 November 2013. Certification training would be required for all new SVCs. The Judge Advocate General announcement characterized the new program as “unprecedented” and noted that it reflected a dedication by the Army to victims of sexual assault, while always ensuring that Soldiers receive fair trials.27
On 1 November 2013, as the Army SVC Program came online, TJAG published an SVC Policy Memorandum that further defined the parameters of the program.28 It stressed:
- The primary duty of SVCs was to zealously represent sexual assault victims within an attorney-client relationship.
- Special Victim Counsel would provide advice and representation for their clients throughout the military justice process. They would advocate for the interests and desires of their clients, even if these did not align with the interest of the government.
- The intent of the program was to build victim resiliency.
- Special Victim Counsel would conduct themselves in a professional manner at all times.
Special Victim Counsel Legislation
Special Victim Counsel legislation, codified at 10 USC 1044e, was signed into law on 23 December 2013 and provided authorization for SVC services as well as mandating each military Service provide SVCs to eligible victims who requested representation.29 The legislation did the following:
- Required the Services to provide SVCs for eligible victims of a sexual offense, whether the victim made a restricted or unrestricted report of the assault.
- Described eligible victims as those who could receive legal assistance services.
- Defined a sexual offense as a violation of Articles 120, 120a, 102b, 120c, or 125 of the UCMJ, or an attempt to commit any of those offenses. The offenses defined by those UCMJ articles cover a spectrum of sexual assaults, from rape to indecent touching, indecent exposure, and forcible sodomy. Also included are any sex assaults against child victims.30
- Specified that the relationship of a victim and their SVC was an attorney/client relationship.
- Required those officials who routinely receive reports of sexual assault to inform the reporting victim of their right to request an SVC or to decline these services.
- Required the Services to provide enhanced specialized training for all prospective SVCs, and that each SVC be certified by their Judge Advocate General as competent to serve in this role.
- Authorized SVCs to provide legal consultation to their clients on a number of issues related to available services and procedures, and to accompany their clients at any proceeding in connection with the reporting, military investigation, and military prosecution of an alleged sexual offense.31
As the first Army SVCs began representing sexual assault victims as clients, they faced a number of initial challenges. First, while published Army policy and statutory authorities for SVCs defined their role in broad terms, there was no ready resource for SVCs that defined the scope of their services or that addressed specific technical questions. In response, the SVC Program Office was tasked, in conjunction with the OTJAG Legal Assistance Policy Division, to provide technical guidance and support to SVCs in the field.
Initially, the Army appointed an active duty colonel to act as the SVC PM. Initially, the SVC Program Manager’s Office (PMO) was composed of the SVC PM, supplemented by personnel from the OTJAG Legal Assistance Policy Division. Several months later, activated reserve judge advocates helped staff the SVC PMO, and as active duty authorizations came online, it was staffed with a mix of active and reserve personnel.
The SVC PMO established itself as a key component in the technical chain for SVCs in the field. While SVCs would rely on their supervisory Chief of Legal Assistance for help with local issues and general guidance, they could reach out directly to the SVC PMO on systemic issues and policies that affected the whole program, as well as unique issues that perhaps no one had yet encountered or addressed. As an important part of its technical oversight, the PMO created the first SVC Handbook, providing practical information and policy guidance. Among other issues, the handbook addressed victim eligibility, program training and certification requirements, and responsibilities and roles of an SVC. It described the scope of representation, and included sample scope of representation memoranda SVC were to complete when establishing an attorney-client relationship with victims. These scope letters would ensure a common understanding between the client and SVC about the role of the SVC, confidentiality of communications, and the circumstances under which representation would end. SVCs needed to quickly reinforce clients’ confidence that all communications were private, that SVCs were there to provide sound advice, and that SVCs were responsible for zealously representing their clients’ interests. The SVC PM engaged in regularly scheduled meetings with the other Services’ SVC managers to discuss common issues, training needs, and share best practices. For instance, early on the Services agreed that the default SVC for each victim would come from the same Service as the victim, not the accused, unless the Services involved agreed that an exception was appropriate. The Army SVC PMO also collected and analyzed statistics, developed certification criteria for SVCs, and developed, in conjunction with The Judge Advocate General’s Legal Center and School (TJAGLCS), specialized training courses.
In October 2013, the Army conducted its first SVC certification course at TJAGLCS in Charlottesville. It offered a special curriculum developed specifically for new SVCs. As this course was about to get underway, TJAG—at that time, LTG Flora D. Darpino—noted in a release, “Training of our future [SVCs] is of the highest priority” and she required completion of this training as a prerequisite to assuming SVC duties.32 She also said, “Future [SVCs] will be selected for their knowledge, skill, and experience in both legal assistance and military justice.”33
The TJAGLCS faculty took on the course manager role for SVC certification. The course offered training on SVC roles and responsibilities, professional responsibility, victim psychology, investigative issues, victim services, relevant MREs, and included a presentation from an experienced Air Force SVC on lessons learned. Each of the next ten semi-annual certification courses built on its predecessors. The improvements developed by the course managers, SVC PM, and Chief of Legal Assistance Policy Division in post-course after action reviews have been reflected in the very high approval comments on student course evaluation feedback. To date, the Army has provided certification training to 779 Army SVCs, and has trained the majority of SVCs from the other Services.
While the program initially filled SVC slots by using judge advocates in legal assistance positions, the program recognized early in its existence that permanent authorizations for SVCs were critical to sustain it. In conjunction with OTJAG PPTO Division, the SVC PM conducted an analysis of the number of SVCs required at field locations. Based on manpower surveys, the program determined that each SVC should carry no more than twenty-five clients at a given time, in order to ensure high quality of representation. Temporary spikes above that number have occurred, but are not considered sustainable for a long-term. In order to remain within the desired caseload range and serve all clients, Army JAG PPTO pursued forty-eight SVC authorizations. Even in a time of personnel drawdown, the Army saw the value of this new program and created twenty-four MTOE (Modification Table of Organization and Equipment) positions and twenty-three TDA (Tables of Distribution and Allowances) positions for SVC duty in the Army. From this point on, HQDA used the O-6 Chief of Legal Assistance position as the SVC PM. All these MTOE and TDA authorizations became effective in 2017, although the Army was able to fill TDA positions a year prior in anticipation of them coming online.
Initially, the SVC Program did not authorize child representation. The statutory requirement for representation, enacted shortly after the SVC Program stood up, included dependent children as eligible clients and included all offenses under Article 120c, UCMJ, covering sexual offenses against children. As a result, the Army SVC Program began training SVCs at child representation courses in August 2014. Army SVCs who complete child representation courses in addition to their baseline SVC certification can represent child sexual assault clients, with prior SVC PM permission.
Representation of child clients brings unique challenges and professional responsibility concerns. The child is the client in an attorney-client relationship if the child has the competency to form the relationship. When the child is the client, the SVC is required to provide legal advice to the child and advocate for the desires of the client, provided those desires are not illegal or unethical. This is true even if the SVC believes the child’s desires are not in the child’s best interests, so long as the child is competent and has the capacity to understand the specific issue. If the child is not competent or does not have the capacity to address the issue, the SVC must look to the appropriate guardian or representative of the child to make decisions on their behalf, which may be a parent, relative, or a court appointed guardian ad litem. It is necessary for the SVC to be able to determine competence and capacity of the child, which is not an easy task, but one which the SVC Program seeks to address through rigorous additional training.
Another problem facing the new Army SVC Program was an inherent, attitudinal barrier among other participants in the system who supported victims and/or the military justice process. While senior leaders in the JAG Corps, commanders in the field, and SARCs and VAs for the most part embraced the implementation of the program, many trial counsel expressed concern that the attorney-client relationship of the SVC and the victim impaired a trial counsel’s ability to build his or her own relationship with a victim. Many defense counsel viewed SVCs as yet another government attorney to oppose them. Some trial judges initially limited the role of SVCs and scheduled trial dates without regard to SVC availability. Also, Criminal Investigation Command (CID) investigators did not appreciate reduced access to victims for immediate questioning, or having limitations on victim interviews due to objections raised on behalf of the victim by their SVC. This sometimes led to acrimony between CID offices and SVCs, which included a number of complaints being lodged by both sides against the other for perceived wrongs.
The solution to these problems were found through program outreach, time, and familiarity. Members of the SVC PMO took action by testifying before the Judicial Proceedings Panel about victims’ issues, meeting with and briefing congressional staff personnel, and taking every opportunity to speak at trainings for SJAs, the trial judiciary, military justice practitioners, SARCs, VAs, FAPs, and law enforcement. These engagements reinforced the role of SVCs in protecting victim rights and kept pace with new legislation. The SVC PM investment in engaging with personnel at CID and CID’s receptiveness to make policy changes within their organization resulted in better relationships between SVC and CID investigators in the field. The changes made by CID de-emphasized a need for immediate, comprehensive interviews with victims who reported sexual offenses, particularly in those cases where the report was not close in time to the assault. The changes also stressed respect for victims’ choices regarding the extent of their participation in the investigative process and the timing of that cooperation.
As time passed and interactions between SVCs and investigators, trial counsel, and judges became routine, an air of normalcy began to emerge. It is fair to say that the military justice system has grown to accommodate SVC practice, and if there were to be a sudden removal of SVCs, the system would have a difficult time adjusting to their absence.
Development of Sexual Assault Victim Law
As the Army initiated and developed the SVC Program, the law in the area of military victims’ rights continued to advance. In addition to the passage of SVC legislation, the 2014 National Defense Authorization Act (NDAA)34 included other significant changes in support of victims, to include:
- Crime victim rights as part of a new UCMJ Article 6b.
- Changing the pretrial investigation process under Article 32 to a Preliminary Hearing process. The new statutory language explicitly provides that a crime victim has the right to decline to testify at these hearings.
- Amending Article 46 to place limits on defense counsel interviews of victims.
- Allowing victims to submit matters to convening authorities on the issue of clemency.
In May 2014, the Secretary of the Army extended SVC services to Reserve Component Soldiers and their adult family members. The SVC PMO has a USAR officer serving as the Deputy SVC PM for the USAR. The Reserves now have 208 SVCs who are certified after training alongside other active component SVCs at semi-annual certification courses. Reserve SVCs participate in Army regional SVC training and hold their own annual training keyed on reserve issues. They are a vital part of the holistic approach to Army victim support.
The 2015 NDAA35 included:
- Expanding eligibility for SVC to sexual assault victims in the Reserve Component and National Guard.
- Allowing victims to express their preference to convening authorities as to whether they desire prosecution in military or civilian courts.
- Amending Article 6b of the UCMJ to reflect that SVCs can represent victims and speak for them at proceedings, as opposed to merely accompanying victims.
- Expanding the privilege under MRE 513 concerning communications between psychotherapists and patients to include other licensed mental health professionals and increasing the burden on a party seeking production or admission of medical records to obtain these records or ask for a judicial in camera review.
The 2016 NDAA36:
- Modified Article 6b to allow victims to challenge an order to be deposed to a military Court of Criminal Appeals, by petitioning for a writ of mandamus to quash the order. It also expressly allows a victim to petition a military Court of Criminal Appeals to challenge rulings at a preliminary hearing that concerns MRE 412, 513, 514, or 615.
- Authorized the Services to expand SVC representation to DoD civilian employees.37
- Required military investigators and trial counsel, before questioning a victim, to inform the victim that they are entitled to the services of an SVC.
The 2017 NDAA38:
- Amended Article 46 of the UCMJ to require a defense counsel request to interview a sex assault victim to go through the victim’s counsel (if the victim is represented) and codified the victim’s right to have their SVC or the trial counsel present at any defense interview.
- Provided that on sentencing, a court-martial shall consider the impact of the offense on “the financial, social, psychological, or medical well-being of any victim of the offense.”
As military victim rights law has evolved, Army Special Victim Counsel have been engaged to ensure the law is properly recognized and applied. SVCs do this through motions practice before trial courts and, if necessary, through writs to appellate courts. One example of SVC success in this area involves the changes to MRE 513 from the 2015 NDAA, noted above, which provides a privilege for mental health records. The change effectively raised the burden for a moving party to obtain an in camera review of mental health records of a victim, which are considered privileged without one of the rule’s limited exceptions. Although the new rule transformed the process of obtaining mental health records, years of practice under the old rule and questions regarding application of the new rule led to little practical change in the courtroom.
In a writ case reported as LK v. Acosta & Sanchez, the Army Court of Criminal Appeals (ACCA) reemphasized the changes to MRE 513 after an SVC filed a petition for a writ of mandamus.39 At the trial level, the military judge ordered the government to produce a child’s mental health records for in camera review without first meeting the rule’s new requirements. Based on the language in the new MRE 513, the SVC objected to the judge conducting an in camera review of the records. When the trial judge denied the objection, the SVC filed a motion for reconsideration, which the trial judge also denied. The SVC then filed a petition for extraordinary relief with ACCA.
In its ruling on the matter, ACCA found, among other things, that the moving party had not met the rule’s requirements and that those requirements were a prerequisite to the trial judge conducting an in camera review.40 The court granted the SVC’s petition, in part, by setting aside the trial judge’s ruling directing in camera review of the records.41 This decision, creating precedent for all Army trial courts, affirmed the legislatively enacted protections extended to victims to better safeguard their privacy interests in their mental health records. The opinion also reemphasized that MRE 513 is a rule of privilege, and should be analyzed as such, rather than a rule of discovery.42 The writ in this case not only served the interests of the victim-client from that particular court-martial, but changed the practice of law throughout the Army for the benefit of all sexual assault victims with mental health records at issue.
Current Standards for Army SVC
The greatest asset of the SVC Program is the strength and quality of the Army judge advocates who perform these duties. The strategy implemented since the beginning of the program has been to select SVCs based not only on their work experience, but also on their demonstrated maturity, compassion, and good judgment. That is why all nominations for SVCs originate with officers’ SJAs, who know them best and can provide an informed and wise assessment for TJAG’s consideration.
At all SVC training, and at any meeting where program personnel speak about SVCs, we emphasize four pillars of SVC success. If an SVC can master these attributes, they can provide their clients with superlative representation. They are:
- COMPETENCE. This includes knowing all applicable regulations and the law. Among other areas, SVCs must know the rules pertaining to eligibility for services, subject matter of the SVC Program, restricted versus unrestricted reporting, victim rights under UCMJ Article 6b, Article 32 Preliminary Hearings, collateral misconduct by victims, investigative procedures and evidence collection (especially as it pertains to phones and digital media), expedited transfer, retaliation/ostracism, communicating victims’ preferences for venue and disposition, courts-martial procedures, non-judicial punishment, administrative actions, victims’ rights under MRE 412 and 513, motions practice, ethics and professional responsibility, local court rules on an SVC’s ability to be heard, appropriate actions for ACCA/CAAF writs and writ filing procedures, and victims’ rights during the sentencing and post-trial phases of courts-martial. Special Victim Counsel must be able to spot issues and engage their technical chain within the JAG Corps when assistance is necessary. Competence also includes taking advantage of training and experience to develop skills in client interviewing and consultation, honing oral and written advocacy skills, and learning about victim psychology and applying this learning to better interact with and relate to clients.
- AVAILABILITY. Timely response to reports of sexual assault is often critical to accomplish required command, medical, investigatory, and prosecutorial actions. These reports can come at any time and often reports made contemporaneously or immediately after an assault are made at odd hours of the night, during weekends or holiday periods. Special Victim Counsel should make contact with new clients as soon as possible in order to provide the best assistance to them while significant response efforts are being set in motion.43 Preferably, this contact should be face to face. Special Victim Counsel should work with their clients to make themselves available to investigators and counsel, when it is in the best interest of the victim to pursue a complete investigation and administrative or criminal action against the accused.
- MANAGING EXPECTATIONS. Special Victim Counsel must explain their role to their clients at the initial meeting or first communication. Clients should understand the attorney-client relationship with the SVC, the concept of privileged communication, who asserts the privilege, and when it does not apply. Special Victim Counsel should inform clients of the scope of representation, and when representation terminates. The client must understand the services an SVC can provide, and those an SVC is not able to offer. Special Victim Counsel should employ a scope of representation memo to memorialize these concepts. Special Victim Counsel should foster the expectation in the client that if the SVC, at a later date, leaves military service or assumes new duties incompatible with continued representation of the victim, it will be necessary for the victim to form a new relationship with a new SVC. Special Victim Counsel must clearly explain to clients what they should expect to occur depending on the type of report and facts of the client’s case. Special Victim Counsel should also manage the expectations of other participants in the response system by communicating the desires of the client (with client’s consent) to commanders, investigators, counsel, and others who provide services to victims.
- PROFESSIONALISM. Special Victim Counsel must always act in a professional manner when interacting with other personnel responding to sexual assault complaints, including commanders, investigators, counsel for the government and the accused, family members, and those providing services to victims. Special Victim Counsel must always treat everyone with dignity and respect. Part of professionalism is fostering good relationships with other participants in the sexual assault response system. Special Victim Counsel should reach out to these personnel in their community and seek to include them in professional meetings and joint training sessions so that when they meet during a time of crisis for a client, a good relationship already exists. Many victims understandably have significant emotional responses to the trauma they have experienced. Through competence, availability, expectation management, and professional engagement, an SVC can help relieve some of a client’s anxiety. Special Victim Counsel must be aware they may be exposed to disturbing descriptions of events from many clients. Special Victim Counsel should not let their own emotional responses compromise their interactions with their clients or other professionals. Repeated exposure to layers of descriptive trauma can cause stress for those representing trauma victims. Therefore, it is important for SVCs to live a work-life balance that includes time with family, exercise, and other breaks from their experiences at work. It is also important for SVCs to recognize when to seek behavioral health services for themselves and not worry about any stigma from seeking such support.
The exceptional work done by all SVCs since the beginning of the program has made an impact on others in embracing a commitment to protecting victim rights. Special Victim Counsel have established their appropriate place and boundaries in working with investigators, prosecutors and military judges. They have become a respected, go-to resource for SARCs and VAs as they represent the interests of victims. Contrary to initial fears, SVCs are no longer seen as a source of inefficiency or confusion, but are viewed as a normal, and often vital, participant in the investigative and disciplinary process in sexual assault cases.
Current Challenges and Program Responses to Those Challenges
Although the SVC Program has proven its value to victims and established itself within the military justice process, challenges remain. Decentralization of SVC services at the installation level has been a positive way to put SVCs closer to their clients, but it has also resulted in an imbalance in workload for SVCs, with some SVCs at busy locations representing too many clients, while SVCs at other locations represent too few. At times there is a need to cross-level work between nearby installations to create better workload balance. Also, when a conflict prevents a local SVC from representing a victim, or a victim leaves the installation due to PCS, ETS, or an expedited transfer, there often is a need to detail a new SVC at the client’s new location or de-conflict representation.
As a solution to the above issues, the program obtained approval from TJAG to appoint five geographic SVC Regional Managers (RMs). Nothing about local detailing of SVC clients changed with the advent of RMs, however, the RMs have authority to detail SVCs in authorized positions to cases at, or originating from, other installations. The ideal method for this is to find the closest SVC to the client’s location, so long as the SVC is not already over-capacity. The RMs can also detail cases among nearby installations to cross-level and balance out SVC workloads. This should enhance the efficiency of the SVC system by reducing travel and maximizing the utility of our SVCs, who are a valuable but limited resource.
In addition to functioning as a cross-installation detailing authority, RMs can fulfill a number of other roles as middle-managers in the SVC technical chain. They can provide technical advice to SVCs in their region, collect and analyze statistical reports, plan and execute annual regional training, provide expertise on motions and writ practice, and serve as facilitators and presenters at SVC certification training. While these RM positions have just come online, they are already proving to be a tremendous asset to the efficiency of the program and support to other SVC.
Another challenge has been the amount of travel required for SVCs due to client movement. As an example, if a victim of sexual assault at Installation A obtains an expedited transfer after reporting an offense, and arrives at new Installation B on the other side of the country (or world), the victim most likely will seek SVC representation at the new Installation B because local representation is better. However, as the accused will remain at Installation A, and a trial will be held at that location, the SVC at the new location would need to travel back to Installation A, not only for the trial itself, but potentially multiple times for investigative interviews, prosecutorial or defense interviews, an Article 32 Preliminary Hearing, arraignment, motions hearings, and discussions with the chain of command and SJA. If an SVC has multiple clients from other installations, TDY can be extensive and time-consuming.
The solution comes from recognition that a victim who moves after reporting an offense, might need two SVCs, one based at the trial location to continue in-court representation, and one at the victim’s new location, to assist the victim with any issues at the new installation and help direct the victim to local service providers. While this increases the number of clients SVCs represent, it reduces TDY and increases the time SVCs are available at their home station.
During site visits conducted by the SVC PM to installations, we frequently meet with CID to assess whether the SVC-CID relationship is positive and whether there are any friction points. One enduring issue is tension between victims and investigators about access to victims’ cell phones. On occasion, this tension rose to the level of physical confrontation between victims and CID agents trying to seize their phones. In some cases, cell phones contain relevant information about a sexual assault and are of use to the investigation. However, phones can also contain a substantial amount of personal information that is not relevant to the report of sexual assault, the release of which would constitute an infringement on the privacy interests of the victim. Also, once information is released to investigators, it is almost certainly discoverable, and likely to be revealed or provided to the accused. It is very difficult to parse out relevant evidence from private information that should be protected from disclosure. Victims are also troubled by the physical loss of their phone for extended periods of time when it is collected as evidence—phones are expensive and not easy for victims to replace, and many Soldiers depend on them heavily.
Through SVC PMO engagement, investigators have become increasingly sensitive to victims’ concerns about cell phone confiscation and information privacy. Investigators now pursue a consent to search authorization from victims for their phones, as opposed to a demand that phones be surrendered. Technology continues to advance, and agents can now obtain consent to do a targeted extraction of a category of information on a phone, for instance, all text messages or all photos. Of course, SVCs must be vigilant that additional information is not extracted, as once information is collected by investigators it is very difficult to put the genie back in the bottle. As an alternative, screen shots of phone information may not be admissible in court proceedings, but can sometimes provide probable cause to allow agents to obtain a search or seizure authorization for the accused’s phone.
Special Victim Counsel advise victims on the need for evidence collection related to phones in order to allow victims to make an informed decision on whether, and to what degree, to turn over their phone information. Sometimes a victim needs to hear from a trusted source that failure to turn over potential evidence to an investigator could result in an investigative or prosecutorial decision adverse to the victim.
Another area of continuing challenge for SVCs is representation of children. As noted earlier, it is difficult for an SVC, who may have very little experience with children or child psychology, to determine the competence or capacity of their child clients. And if a child-client is not competent, and a parent is not available or in an appropriate position to make decisions on their child’s behalf, it can be difficult to secure a guardian ad litem or another official to act on the child’s behalf. At this time, the best solution for SVCs is to utilize military FAP personnel and civilian child protective services, who can act when it is necessary to remove a child from parents who are not acting in their child’s interest, or find sources of guardianship for children in need.
The Future of the Program
Despite initial doubts and challenges, some of which we continue to address, the Army SVC Program has proven to be tremendously successful. Current and former victim-clients consistently cite their SVC representation as contributing greatly to both their short-term and long-term resiliency. Special Victim Counsel have given victims the ability to engage in the military justice process with confidence that their dignity, privacy, and interests are important and will be respected. The confidence that SVCs provide to victims will likely, over time, help increase the percentage of victims who choose to immediately report offenses and engage in disciplinary actions against offenders.
The Army implemented the SVC Program in a thoughtful manner, one that endeavored to best serve Soldiers and their family members who are victims of sexual assault. The program has adapted and evolved in a positive direction during its five years of existence, and will continue to address emerging victim issues. We owe that to our victim-clients and to our military justice system. TAL
1. Commission on the 50th Anniversary of the Uniform Code of Military Justice, Report (2001), at 3, https://nimj.org/wp-content/uploads/topics/cox-commission/coxcommission2001/2001%20Report%20of%20the%20Commission%20on%20the%2050th%20Annivesary%20of%20the%20Uniform%20Code%20of%20Military%20Justice%20%282001%20Cox%20Commission%20Report%29.pdf.
2. U.S. Dep’t of Def., Annual Report on Sexual Assault in the Military (FY2012), at 16.
5. Essa Yip, The Invisible War Impacting Efforts to Combat Military Sexual Assault, MSNBC (Sep. 12, 2013), http://www.msnbc.com/jansing-co/the-invisible-war-impacting-efforts-comb.
6. Lt Col Rhea A. Lagano, MAJ Sarah W. Edmundson, and MAJ L. Dustin Grant, The Air Force SVC Program: The First Five Years, 44 Reporter, no. 3, 2017, at 31, 32, citing Dep’t of Def. Authorization Act of 1985, Pub. L. No. 98-525, § 651 (1984).
7. Id., citing Nat’l Def. Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 581 (2011) [hereinafter FY2012 NDAA].
8. Id., citing Memorandum from Gen. Counsel, Office of the Gen. Counsel of the Dep’t of Def., subject: Legal Assistance to Victims of Sexual Assault (9 Nov. 2012).
9. Jennifer Hlad, Air Force to Assign Counsel for Victims of Sexual Assault, Stars and Stripes (Jan 9, 2013), https://www.stripes.com/news/air-force-to-assign-counsel-for-victims-of-sex-assault-1.203281.
10. Military Rule of Evidence (MRE) 412 is the military “rape shield” evidentiary rule that generally prohibits evidence of a sexual assault victim’s past sexual history, unless an exception applies; MRE 513 is a privilege rule concerning behavioral health records; and, MRE 514 is a privilege rule for communications between a sexual assault victim and victim advocate.
11. LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).
12. Id. at 11.
13. Id. at 21-22.
14. Nat’l Def. Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1701 (2013) [hereinafter FY2014 NDAA].
15. Air Force Special Victims’ Counsel Program Victim Impact Survey (2013), http://jpp.whs.mil/Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20141114/04_USAF_SVCProgram_VictimImpactSurvey_201303.pdf.
16. Press Release, Patty Murray, Senator, U.S. Senate, Air Force Chief of Staff Praises Special Victims’ Counsel Pilot Program (Jun 4, 2013), https://www.murray.senate.gov/public/index.cfm/newsreleases?ID=AAF3E8E1-BB79-49D6-8EA2-620A94836E8A.
19. Air Force Special Victims’ Counsel Charter, 2013, http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_Related/04_USAF_SpecialVictimsCounsel_Charter.pdf.
21. Memorandum from Sec’y of Def. to Secretaries of the Military Departments, et al, subject: Sexual Assault Prevention and Response (14 Aug 2013), http://sapr.mil/public/docs/news/SECDEF_Memo_SAPR_Initiatives_20130814.pdf.
23. LTG Flora D. Darpino, TJAG Sends, Volume 39-02, 15 Oct 2013, http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_Related/03_USA_TJAGSends_39_02_SpecialVictimAdvocateProgram_20131015.pdf.
28. LTG Flora D. Darpino, Office of The Judge Advocate General, Policy Memorandum #14-01, 1 Nov 2013, http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q21_USA.pdf.
29. FY2014 NDAA, supra note 14.
30. Article 120, UCMJ, addresses sexual assaults that include penetrative offenses, as well as touching of parts of another person’s body for sexual gratification; Article 120a, UCMJ, addresses stalking; Article 120b, UMCJ, concerns sexual assaults against a child; and, Article 120c, UCMJ, addresses “other sexual misconduct.” At the time of passage of the statute, Article 125 criminalized forcible sodomy.
31. The statue has since been amended to allow SVCs to represent their clients and speak for them at proceedings. See Nat’l Def. Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 534 (2014).
32. LTG Darpino, TJAG Sends, supra note 23.
34. FY2014 NDAA, supra note 14.
35. FY2015 NDAA, supra note. 31.
36. Nat’l Def. Authorization Act for Fiscal Year 2016, Pub L. No. 114-92 (2015) [hereinafter FY2016 NDAA].
37. The Acting Secretary of the Army authorized Army SVCs to represent DoD civilians within the scope of 10 USC 1044e, on 1 May 2017. https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN3282_AD2017-16_Final.pdf.
38. Nat’l Def. Authorization Act for Fiscal Year 2017, Pub L. No. 114-328 (2016).
39. LK v. Acosta & Sanchez, 76 M.J. 611 (A. Ct. Crim. App. 2017).
40. Id. at 13.
41. Id. at 14.
42. Id. at 1.
43. The Army SVC OPM issues “smart” phones to all SVCs for official use. This allows SVCs to receive and send client calls whenever necessary, and also allows SVC communication with clients via text messaging.