Sexual assault victims now entitled to their own lawyer
During criminal proceedings in a courtroom, the defendant has a lawyer. The state is also represented by their own lawyer, the prosecuting attorney. But the victims of sexual assault have historically not had the benefit of a state-provided advocate as they are interviewed, as they testify on the witness stand, and as they move through the other complexities of the criminal justice system.
This is no longer the case.
Soldiers who report that they have been the victim of a sexual assault can elect to have a Special Victims Counsel assigned to them, which came to effect Nov. 1. An SVC is an active duty Army attorney, provided at no charge to the victim, who will represent the victim’s interest throughout the course of the legal proceedings that might follow the report of a sexual assault.
Col. Jay McKee, an Army lawyer with the Army’s Office of the Judge Advocate General, serves as the program manager for the Army’s Special Victims Counsel program.
“Once the crime happens, or alleged crime happens, and the victim is seen by a victim advocate, or at the hospital or by Victim Witness Liaison -- however the victim is taken into the system -- they are notified that they have a right to an SVC.”
It is a misconception, McKee said, that the prosecuting attorney in a criminal case represents the victim of a crime. The prosecutor represents the government’s interests or society’s. But McKee added that in almost all cases those governmental interests are the same as the victim’s: to see that justice is done.
“The prosecutor wants justice. He is serving the community, he is serving the military justice system for good order and discipline of the force,” McKee said. “And 99 percent of the time, that interest is aligned with the victim’s. They want the same thing.” But sometimes, McKee said, the victim might have concerns that require the assistance of an attorney.
For example, the defense attorneys might also want to bring into the trial a victim’s medical records or past sexual history. That might possibly damage a victim’s reputation or embarrass her.
“They can try to get that introduced on the record,” McKee said. “The defense is there to represent the defendant, the accused, they are going to put on the best case for the accused. Sometimes that is not in the best interest of the victim to undergo cross examination in a public trial about her past sexual history or to have her personal medical records be reviewed by parties to a courts-martial..”
The SVC can help the victim make sense of the ramifications of trial, and help her understand what will happen. McKee also said that while the SVC will not participate in the “adversarial portion” of a trial -- in that there will not be a third table in the courtroom for the SVC and the victim -- the SVC will be able to make motions on behalf of the victim, talk to the Special Victim Prosecutor, the trial council, trial defense attorney, and the staff judge advocate “in terms of what justice looks like for the victim.”
Right now, there are about 45 SVCs in the Army, across the United States, and in Europe. There will soon be a SVC in Afghanistan as well. The total number of SVCs the Army will ultimately need will be determined after a year of evaluating manpower needs for SVCs, McKee said.
Special Victims Counsel are nominated for service out of the existing pool of Army lawyers, and serve for no more than two years. They are chosen after an evaluation based on their military justice experience, maturity, and judgment. Those chosen for the program undergo three days of training, which includes classes on professional responsibility, military rules of evidence, the Army’s parole system, forensic medical exams, rules for practicing as an SVC, and classes from professionals who teach about how to treat and talk with a victim of a sexual assault.
Sometimes a sexual assault case is not tried in a military criminal court, but instead in a civilian criminal court. McKee said in those cases, the Army will also provide a special victims counselor to Soldiers who are victims of sexual assault. The SVC cannot appear in the local civil court, but can help explain the process and provide victims with legal assistance advice, such as helping them get a civilian restraining order against the accused.