Over the last few years the issue of sexual assault in the military has garnered national and congressional attention. The military has responded with numerous programs to reduce the number of sexual assaults within its ranks.
In addition to educating servicemembers, the military has made a concerted effort to make victims feel more comfortable reporting assaults. A 2013 report by the U.S. Commission on Civil Rights found that 23% of women and 4% of men had experienced unwanted sexual contact since enlistment, but 54% of female and 27% of male victims did not report the sexual assault. One reason so few cases were reported is fear of retaliation. Victims feared their careers would be derailed and their rights would not be protected.
In 2014, as part of the National Defense Authorization Act, Congress directed the Secretaries of each service branch to create the role of Special Victim’s Counsel (SVC) to represent sexual assault victims. The program is working to protect victims’ rights, increase reporting, and reduce the incidence of sexual assault.
The number of estimated sexual assaults is falling at the same time the number of soldiers who report a sexual assault is at a record high. In 2016, there were 6,172 reported cases of sexual assault. This is nearly double the number of incidents that were reported in 2012. This means the Pentagon’s measures have helped both to reduce the incidence of sexual assault and increase the number of victims who feel comfortable reporting their assault. The SVC has been an important part of this success.
However, the military should not let the program’s success deter it from looking for ways to improve it.
The SVC is a lawyer who has standing in the courtroom and who represents and advises the victim, who is usually the Government’s key witness. The SVC will almost always be adversarial to the defendant, who at a court-martial is known as the “Accused.”
However, because the SVC is a new position, its role in a prosecution action remains somewhat ambiguous. Currently, the military trial judge has enormous discretion over the role of an SVC in a court-martial. This has led to inconsistency from case-to-case in what SVCs are allowed to do and in how effective they can be.
Some judges have expanded the SVC role, allowing them not just to advise victims but also to participate in the trial by filing and arguing motions and making objections. This expanded role creates constitutional conflicts that must be acknowledged and corrected.
Allowing the SVC to participate in the trial of the Accused risks creating a kind of second prosecutor, but without the prosecutor’s obligation to act in the interests of justice. Under the landmark case Brady v. Maryland, a prosecutor is constitutionally required to disclose exculpatory evidence even if such disclosure undermines the Government’s case. A prosecutor has an ethical obligation to pursue the interests of justice, even at the expense of winning the case.
In contrast, the SVC does not have any Brady obligation to disclose evidence that would harm their client and is required to be a zealous advocate for their client. In this respect, the SVC is like the defense attorney, in that their obligation is to represent their client and not serve the broader interests of justice.
However, while defense attorneys may face moral dilemmas about whether they can disclose client communication that might prevent another person from going to jail, such cases do not present constitutional issues. The constitutional right of one accused to receive exculpatory information does not supersede the right of another accused to be represented by a zealous advocate or to enjoy the attorney client privilege.
A victim, on the other hand, does not have a constitutional right to an attorney. We should be careful about how involved an SVC is allowed to be in the proceedings so we don’t create a situation in which the SVC is doing the bidding of the prosecutor, but without being bound by the prosecutor’s ethical obligations.
To illustrate the danger, imagine an SVC who discovers through a conversation with the victim evidence that would exculpate the Accused. Not only would the SVC not be required to disclose this material under Brady, the SVC would actually be prohibited from disclosing such evidence due to the attorney-client privilege and the duty of loyalty. Moreover, that same SVC could use his or her standing in court to make motions that might prevent the discovery of said evidence. The result is an SVC who can use their special knowledge to keep the defendant from gaining exculpatory evidence. If this is allowed, the Accused’s right to due process may be jeopardized. When the defense requests disclosure from the government, the prosecutor has an affirmative duty to turn over exculpatory material. An SVC has no such obligation.
To illustrate the problem, in a recent case the mother of a victim in a sexual assault court-martial offered to give the prosecutor a box with exculpatory evidence. The prosecutor refused to accept it and never disclosed the evidence. The prosecutor was admonished by the court and the case was dismissed with prejudice because the prosecutor breached his duty to put justice first. But an SVC would have no Brady obligation if he or she were given exculpatory evidence. The SVC could take custody of the evidence and never disclose its existence because he or she is not covered by and, therefore, not subject to the constitutional limitations of Brady. Further, the SVC could move to suppress discovery of this evidence by making and opposing motions in limine and in discovery.
To be clear, the constitutional issue does not arise from the attorney client relationship the SVC shares with the victim. The crux of the matter is that an SVC could use his or her special knowledge to make motions and objections at a court-martial, including for the purpose of excluding evidence.
In the civilian world, victims are allowed to hire attorneys and their conversations with their attorneys are confidential – just like the victim’s conversations with an SVC. But those civilian attorneys cannot file and argue motions in the trial court because the victim is not a party to the litigation. In the civilian context, the victim’s lawyer cannot weaponize their knowledge of critical facts of the case to the disadvantage of the Accused. To obviate constitutional conflicts that could undermine the future of the military’s SVC programs, the SVC’s role should be clearly distinguished from that of the prosecutor.
The Secretary of Defense should issue a directive prohibiting the SVC from participating in the trial, including making motions in limine or evidentiary objections. Such a directive would remove any suggestion that the SVC program harms due process by clarifying that the SVC’s role is limited to that of solely an attorney representing a witness. The only time an SVC should be allowed to make motions in court should be situations when a third-party attorney could normally do so, such as a motion to quash or modify a subpoena.
While these measures would reduce the victim’s influence in the rare situations in which the prosecutor and SVC disagree, it would generally not interfere with the primary purpose of the SVC program, which is to protect victims’ rights. Eliminating the SVC’s standing in court would not only end an infringement on the due process rights of defendants but would ultimately strengthen the integrity of the SVC program, ensuring it continues to be an effective means of protecting victims of sexual assault.
Any opinions represented in the article are those of the author and not of DoD or the Army.
J. Solomon Bashi is an associate with Simpson Thacher & Bartlett in NYC. He is also a Captain in the Army National Guard, currently deployed to Guantanamo Bay.