Since 28 January 2013, the Air Force was the first branch of the military to add a new player in the adversarial sexual assault system: the Special Victim Counsel. The Coast Guard followed suit on 15 July 2013. The Navy in August 2013 announced they would implement a similar program, calling their advocates Victim Legal Counsel. The Marine Corps’ equivalent program became effective on 1 November 2013, and lastly the Army began its program in mid-November 2013.
The role of the Special Victim Counsel has morphed beyond what most practitioners ever anticipated, and the Court of Appeals for the Armed Forces, the military’s highest appellate court, has declared that the Special Victim Counsel has standing to make motions, respond to motions, and to be heard by the judge in front of the bar.
In March 2013, I represented an Air Force client at an Article 32(b) investigation. In that case, defense was fortunate enough to have a pre-Article 32(b) interview of the complaining witness. Defense has no right to interview a complaining witness at any time prior to trial, but prior to the advent of the SVC, they were far more commonplace. The complainant in this March 2013 Air Force case was accompanied by her newly-minted Special Victim Counsel. During the interview, the SVC repeatedly told her client not to answer defense questions. The SVC cited no legal authority and provided zero basis of privilege for her directives to her client.
What was evident was that the SVC was inserting herself into the process to try to prevent the complaining witness from providing answers that would undermine her accusation; it was as though a prosecutor was present during a defense interview.
Despite the SVC’s best efforts, defense unraveled the complaint and convinced the Article 32(b) investigation officer to recommend complete dismissal.
The Military Justice office served a copy of the Article 32(b) investigating officer’s report on the SVC who in turn provided it to her client. The SVC prepared written matters to submit to the convening authority for his consideration when deciding to dismiss the charges or to refer them to trial by court-martial. At no time did the Military Justice office serve a copy of the SVC’s written matters on defense so that defense would have an opportunity to fairly respond. The SVC’s written matters went into the convening authority without the defense ever being made aware that written matters existed. Fortunately, justice prevailed and the convening authority showed sound judgment when he dismissed the charges.
As each branch of service has implemented its own brand of the sexual assault “victim” attorney, I confront new and different issues, but those that are infuriating all the same. With sparse exception, every encounter with one of these counsel reminds me of the harsh environment service members are facing in trying to defend allegations of sexual assault.
This week was no different. While representing an Army client in an Article 32(b) hearing, in the middle of my cross-examination of the complaining witness, and at a time when her accusations were beginning to crumble, the Special Victim Counsel stood from behind the bar and asked the hearing officer if she could meet with her client. The Special Victim Counsel had no objection under any rule, did not allege that questioning violated statutory privilege or privacy interests, or that the questions were degrading as per the rules. The prosecutor remained silent. Indeed, the SVC provided absolutely no basis whatsoever for insinuating herself into the hearing. Defense objected. The hearing officer initially denied the SVC’s request, but in so doing, he announced openly and in the presence of the complainant that since the counsel was the one requesting, he would not give the break. After I posed additional questions that bore down on the far-fetched nature of the story, the complaining witness asked to meet with her counsel. Defense again objected, but the IO allowed them to meet. After returning to the witness stand, nearly every answer provided by the complainant became “I don’t remember.”
The IO explained his reasoning in allowing the witness and her attorney to meet: that he needed to balance the rights of the “victim” with the due process rights of the accused. What balance is that? The only balancing test under any Military Rule of Evidence that looks to the rights of a “victim” and the rights of an accused is Military Rule of Evidence 412, concerning prior sexual history or disposition of a sexual assault complaining witness. An Article 32(b) hearing, even under the newest revision to Rule for Court-Martial 405, is not established to weigh an accused’s rights against the WITNESS who alleges he committed a crime.
The SVC may believe she won the battle, but the war rages on. Defense will use what happened as fodder for cross-examination of the complaining witness at trial (for there is sure to be a trial; this is an Article 120 accusation in 2015 after all, and Congress has not found its latest pet project to distract it from this “cause” du jour), and we will consider the filing of a motion to pierce the veil of attorney-client privilege to discover exactly what it was that the SVC said to her client (“just say you don’t remember,” perhaps?).
The obstructionist behavior of the SVC is not soon to end. Indeed, every appellate review seems to provide the SVC with new standing and a role that stretches the limits of what any among the defense bar would seem to view as within the realm of fair. But, what of fairness in this day? All Congress wants are convictions.