Last year the Army Lawyer published The Special Victim Counsel Program at Five Years: An Overview of Its Origins and Development, by Colonel Louis P. Yob, the program manager for the Army’s Special Victims Counsel (SVC) Program. The piece is available here.
Colonel Yob tracks the development of the SVC program from the release of the uninformed, dishonest, or both movie The Invisible War in 2012, to CAAF’s decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), and the enactment of 10 U.S.C. § 1044e in 2013.
The Army established the SVC Program Manager (PM) and Program Manager’s Office (PMO), led by an active duty Colonel (O-6) and staffed by a mix of active and reserve personnel. The PM determined “that each SVC should carry no more than twenty-five clients at a given time,” and so requested authorization for 48 SVC positions. 47 such positions were ultimately approved and created. Yet SVC attorneys faced initial resistance from other participants in the military justice process. Specifically:
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.
Military law related to the rights and privileges of alleged victims continued to evolve after establishment of the SVC program, including numerous expansions to the victims rights’ provisions of Article 6b. Colonel Yob writes that Army SVC were “engaged to ensure the law is properly recognized and applied . . . through motions practice before trial courts and, if necessary, through writs to appellate courts.” One particular example is the Army CCA’s decision in LK v. Acosta, 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (discussed here), regarding Mil. R. Evid. 513 (the psychotherapist-patient privilege). Colonel Yob writes that the decision:
creat[ed] 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.
LK involved allegations of sexual misconduct by the accused against the child of the accused’s spouse, and the military judge ordered the production of the child’s therapy records based on the following exception to the privilege:
There is no privilege under this rule . . .  when the communication is evidence of child abuse or of neglect, or  in a proceeding in which one spouse is charged with a crime against a child of either spouse.
Mil. R. Evid. 513(d)(2). But the Army CCA reversed, holding that the first clause of the exception is limited to evidence of child abuse or neglect (and doesn’t exclude evidence of the absence of abuse of neglect), and that the second clause applies only to the admission of communications into evidence (and doesn’t apply to the pretrial discovery of such communications). 76 M.J. at 617-619. The Army CCA’s was subsequently adopted by both the Navy-Marine Corps CCA and the Air Force CCA. See United States v. Marquez, No. 201800198, slip op. at 9 (N-M. Ct. Crim. App. Oct. 28, 2019) (link to slip op.); United States v. Blackburn, No. 39397, slip op. at 14 (A.F. Ct. Crim. App. Aug 22, 2019) (link to slip op.), certified on diff. ground, __ M.J. __ (C.A.A.F. Dec. 17, 2019) (noted here).
Colonel Yob also discusses current standards for Army SVC, outlining the “four pillars of SVC Success”:
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. 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.
Finally, Colonel Yob reviews how the Army’s SVC program evolved, including the creation of geographic SVC Regional Managers with the authority to detail SVCs to individual alleged victims, and the assignment of multiple SVCs to a single alleged victim who is located at (or received an expedited transfer to) a location far from the trial location.
The #1 Military Justice Story of 2012 was the politicization of the military’s response to sexual assaults, and that politicization continues today in many forms including through intense lobbying efforts by special interests. Colonel Yob’s article illustrates how dramatically the military justice system changed in response to that politicization, and suggests that well-resourced and aggressive SVC attorneys will continue the transformation.
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