Policy Achievements

Codify Right to In-Court Representation for Special Victims’ Counsel Program

  • The National Defense Authorization Act for 2015 (NDAA) codified the role of Special Victims’ Counsel to include representation in court.
  • This change is crucial to SVC’s abilities to advocate for their clients in court to protect their rights.

Victim representation by a full-service attorney is essential to prepare for Article 32 hearings, object during pre-trial hearings, file motions under Military Rules of Evidence (“MRE”) 513 and 412 to protect against unwarranted intrusion into mental health and sexual histories, meet with defense counsel, etc.

While DOD has established a victims’ counsel program across all forces, and the military’s highest court, the Court of Appeals for the Armed Forces (CAAF), has ruled that victims’ counsel can represent victims in court, the role of these attorneys is still being defined and tested. There is confusion on this issue because of language in the FY14 NDAA that conflicts with the Secretary of Defense’s directive implementing the then existing 10 USC §1044e. The Secretary’s August 14, 2013 directive states that, “Secretaries of the Military Departments shall establish a special victim’s advocacy program best suited for that Service that provides legal advice and representation to the victim throughout the justice process” (emphasis added). In contrast, language passed in FY14 NDAA contradicts this directive, and suggests that Congress intended for victims’ counsel to have a far more limited role. In Sec. 1731, it states:

“(B) An assessment regarding whether the roles, responsibilities, and authorities of Special Victims’ Counsel to provide legal assistance under section 1044e of title 10, of alleged sex-related offenses should be expanded to include legal standing to represent the victim during investigative and military justice proceedings in connection with the prosecution of the offense” (emphasis added).

The FY14 NDAA language is a step back in the effort to ensure that victims have adequate legal support, and detracts from the effectiveness of the SVC program.

Congress should codify the purpose of this program to establish the right to representation in law and authority of the SVC to actually have standing within the investigative and judicial processes. This is crucial to ensuring victims’ counsel can adequately advocate for their client’s rights.

Mandate Consultation With Victims’ Counsel During Scheduling of Proceedings

  • The 2015 NDAA instructs the Secretary of Defense to establish policies and procedures designed to ensure that any counsel of a victim of a sexual offense is provided prompt and adequate notice of the scheduling of any hearing, trial, or other proceeding in connection with the prosecution of their case.

The military judge must consider the availability of the SVC along with all relevant factors including the accused’s right to a speedy trial prior to scheduling any hearing. Legal offices are consistently failing to consult with Victims’ Counsel during the scheduling of hearings and courts-martial trials. Legal offices should be required to coordinate with victims’ counsel to ensure they are informed and can be adequately prepared.

Re-Write MRE 513 to Conform to Other Privileges Under Military Rules of Evidence (“MRE”) 502, 503 and 504

  • The 2015 NDAA eliminated the “constitutionally required” exception to the Psychotherapist-patient privilege (MRE 513).
  • This change raises the threshold needed in order to gain access to and use victims’ mental health records against them.

MRE 513 should be re-written to give communications between patients and mental health professionals the same level of protection as those under the attorney-client, penitent-clergy, and spousal privileges. This would bring the military in line with thirteen states that have conformed their psycho-therapist-patient privilege to the model of attorney-client privilege, and offers the highest protection to victims of crime.

Existing proposals to conduct a study on the use of mental health records by defense during trial is an unnecessary delaying tactic and is misdirected. It is evident from the rulings routinely handed down by judges in military courts that this rule is being ignored and victim’s rights are being abused. The rule, in its current form, is being abused and is failing to serve its purpose: to guarantee victims of rape and sexual assault can access mental health care confidentially, without a risk that the contents of those sessions might be shared with defense counsel and their attacker. This change is necessary to keep faith with the victims of sexual assault who must have confidence that their therapy is confidential.

In response to a recent article regarding mental health records being used in military trials, a member of the American Psychoanalyst Association Executive Council recently said: “Military defense lawyers’ attempts to search sexual assault victims’ psychotherapy records to ‘expose inconsistencies’ demonstrate an appalling misunderstanding of psychotherapy and the narratives that emerge from it. Far from the calculated, exquisitely targeted missiles that lawyers train on their opponents, the stories that patients tell in psychotherapy are full of self-doubt, shame and self-blame as a soul tries to reach a tolerable version of what really happened. To consider as evidence records based on these tentative descriptions, assertions and retractions seems to me to require a denial of everything we have learned in the past 50 years about how people experience trauma.”[2]

While trial courts routinely order disclosure of confidential psychotherapy communications, no military appellate court has ever reviewed the appropriateness of such disclosure, and the disclosures continue. The military appellate courts never have the opportunity to rule upon the issue because victims do not have any interlocutory appeal rights, the government has interlocutory appeal rights only upon the exclusion of evidence, and government appeal after an acquittal is barred by double jeopardy considerations.

Eliminate Good Military Character (“GMC”) Defense From Findings Phase of Trial

  • The 2015 NDAA eliminated the Good Military Character Defense during the merits stage of courts-martial, explicitly excluding its use in sexual assault cases.
  • This means an accused will no longer be able to use their military record to raise reasonable doubt to avoid justice.

Currently defendants can use Good Military Character under MRE 404 as a complete defense to a charge of sexual assault. Today, if an accused presents evidence of his good military character, the military judge must instruct the jury that such evidence alone may raise reasonable doubt. There is no equivalent to this rule in the civilian criminal justice system.

Current proposals to eliminate GMC include an exception if a defendant’s character is “directly tied to the alleged crime.” This exception is far too broad and leaves judges with too much discretion to ignore the rule. The GMC defense should be eliminated from the findings phase of courts-martial, with specific exceptions only in the instance of military-specific crimes[3] such as being AWOL or disobeying an order.

Ensure Article 32 Reform Passed in FY14 NDAA is Not Circumvented by Pre-Trial Depositions of Victims Requested by the Accused

  • POD worked with Congress to include a provision in the 2015 NDAA that makes military deposition law consistent with federal law. Prior to the change, judges could only deny a deposition for good cause.
  • In order to depose a victim prior to trial, a party must now demonstrate that, due to exceptional circumstances, it is in the interest of justice that the testimony be preserved for use at an Article 32 pre-trial hearing or court-martial, and cannot use a deposition to conduct pretrial discovery.

Article 46 and Rules for Courts-Martial (“RCM”) 701 and 703 have been interpreted so broadly that, unlike most civilian jurisdictions, witnesses in military courts-martial are, as a rule, often subject to multiple pretrial interviews by Defense Counsel prior to trial. These interviews frequently serve no other purpose other than to allow Defense Counsel to fish for prior sexual history and create collateral impeachment material by hoping that the witnesses cannot maintain consistency over repeated interviews spanning months.

Congress passed reform to Article 46 in FY14 NDAA specifically to prohibit this type of abusive and unnecessary questioning of victims in pretrial interviews. Congress also reformed the Article 32 hearing process so that the focus of the inquiry will be whether there is probable cause to proceed to courts-martial and not the harassment of witnesses. A victim of sexual assault will have the right not to testify at an Article 32 hearing.

The Air Force Court of Criminal Appeals recently upheld a ruling ordering a victim to sit for an unlimited deposition prior to trial, after she had already submitted to over 5 hours of questioning by defense. This order is currently pending review at the Court of Appeals for the Armed Forces (CAAF).

Congress should follow the federal courts, which are clear: depositions may be taken only to preserve testimony for use at trial, except when the parties, by agreement, can take a deposition. Congress must make it explicitly clear that Defense Counsel cannot use depositions of victims as an end-run around these recent reforms.

[1] 47 U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures encl. 5, ¶ 7.a (Mar. 28, 2013), available at: http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf.

[3] Offenses under sections 883-891, 893-917, and 933 of title 10, United States Code: Articles 83 fraudulent enlistment; 84 effecting unlawful enlistment, appointment, separation; 85 desertion; 86 absent without leave; 87 missing movement; 88 contempt towards officials; 89 disrespect toward superior commissioned officer; 90 assaulting, willfully disobeying superior commissioned officer; 91 insubordinate conduct toward warrant, noncommissioned, petty officer; 92 failure to obey order or regulation; 93 cruelty and maltreatment of subordinates; 94 mutiny and sedition; 95 resisting apprehension, flight, breach of arrest, escape; 96 releasing a prisoner without proper authority; 97 unlawful detention; 98 noncompliance with procedural rules; 99 misbehavior before enemy; 100 subordinate compelling surrender; 101 improper use of countersign; 102 forcing safeguard; 103 captured, abandoned property; 104 aiding the enemy; 105 misconduct as prisoner; 106a espionage; 107 false official statements; 108 military property; loss, damage, destruction, disposition; 109 property other than military property of US; waste, spoilage, or destruction; 110 improper hazarding of vessel; 111 drunk or reckless operation of vehicle, aircraft, or vessel; 112 wrongful use, possession, manufacture or introduction of controlled substance; 113 misbehavior of sentinel or lookout; 114 dueling; 115 malingering; 116 riot; 117 provoking, speech, gestures; 133 conduct unbecoming an officer; 134 general article of the Uniform Code of Military Justice.