Sunday, 17 November 2019
Special Victims’ Counsel
Special Victims’ Counsel

The Air Force SVC Program: The First Five Years

This article was originally published in the 2017 edition of The Reporter, Volume 44, Number 3. Additional resources have been added to enhance the digital version.

As the Air Force SVC program enters its fifth year, this article will review the SVC program development and expansion, and highlight the current state of the law and guidance.

January 2017 marked the four-year anniversary of the Air Force Special Victims’ Counsel (SVC) program’s formal establishment. Following the Air Force’s lead in creating this vanguard program, in August 2013, Secretary of Defense Chuck Hagel ordered the Secretaries of all Military Departments to establish similar victims’ counsel programs.[1] Now present in all branches of Service, victims’ counsel have witnessed an unprecedented growth in victims’ rights and victim involvement in the military justice process. As the Air Force SVC program enters its fifth year, this article will review the SVC program development and expansion, and highlight the current state of the law and guidance.

We begin by examining the creation of the SVC program within the Air Force, the expansion of victims’ counsel programs throughout the Department of Defense (DoD), and the growing list of victims’ rights. In the second part of this article, we examine the current state of the law and regulations governing the SVC program, highlighting the role of the SVC, and the responsibilities and obligations of the base legal office and others who interact with victims and SVCs. Additionally, we examine the most recent development in the area of SVC representation–Air Force Guidance Memorandum (AFGM) 2016-01 to AFI 51-504.

Our goal through this article, is for military justice practitioners to gain a better understanding of the history and development of the SVC program, what we do for our clients and how to interact with SVCs and Special Victims’ Paralegals (SVPs).

History

Creation of the SVC Program

In 1985, Congress provided statutory authorization for Judge Advocate General attorneys (JAGs) to provide legal assistance to individual clients under 10 U.S.C. § 1044.[2] In response to several widely publicized incidents of sexual assault within the military, Congress passed 10 U.S.C. § 1565b in 2012, directing that sexual assault victims receive legal assistance.[3] In order to clarify whether § 1565b limited or modified traditional legal assistance under § 1044, the Office of the Secretary of Defense General Counsel (OSD/GC) provided a legal opinion on the subject. In that 9 November 2012 memo, OSD/GC opined that §§ 1044 and 1565b, when read together, authorized JAGs to provide representational legal assistance to sexual assault victims in the criminal context, which included attending interviews and interfacing with military prosecutors, investigators, and defense counsel.[4]

Based upon the OSD/GC memo, in January 2013, the Air Force created the SVC program. This initially took shape as a base legal office function with captains performing SVC duties as an additional duty. By June of that year however, Air Force SVCs moved out of the base legal offices and established stand-alone offices operating under the Air Force Legal Operations Agency (AFLOA), similar to Area Defense Counsel (ADC) offices. By fall of 2013, other Services within the DoD began creating their own victims’ counsel programs, and in a 14 August 2013 memo by Secretary Hagel (SecDef Memo), the Secretaries of all Military Departments were required to establish victims’ counsel programs by 1 January 2014.[5] The SecDef Memo specifically directed these programs to provide legal advice and representation to crime victims throughout the military justice process.[6] About the same time, Congress established the statutory authority for the SVC program in the 2014 National Defense Authorization Act (NDAA).[7]

U.S. Air Force Special Victims’ Counsel Program – Tribute Video

Expansion of the SVC Program

The 2014 NDAA contained some of the most sweeping and dramatic changes to military justice in recent memory. In addition to authorizing SVC representation under the newly-created 10 U.S.C. § 1044e,[8] to include representing child victims, the 2014 NDAA directed changes to the Uniform Code of Military Justice (UCMJ) that changed the way victims are treated in the military justice process. Specifically, the 2014 NDAA:

  • enumerated crime victims’ rights under a new Article 6b of the UCMJ,[9]
  • revised the Article 32 preliminary hearing process,[10]
  • eliminated the five year statute of limitations for some sex-related crimes,[11]
  • added limitations on defense counsel interview of victims under Article 46,[12]
  • mandated initiating discharge proceedings for those found guilty of sex-related offenses,[13] and
  • provided victims an opportunity to submit matters to convening authorities on clemency,[14] among other things.

In the 2015 NDAA, Congress further addressed sexual assault in the military and expanded the role of SVCs.[15] This NDAA:

  • expanded the list of persons eligible for SVCs to include Guard and Reserve members,[16]
  • added a requirement for convening authorities to consult with victims on their preference for prosecution by the military or by a civilian court with jurisdiction over an offense,[17]
  • amended Article 6b to clarify that SVCs can “represent” victims and speak for them during proceedings as opposed to simply “accompanying” victims,[18]
  • added an appellate enforcement mechanism for violating victims’ rights,[19]
  • removed the “good military character” defense for certain offenses,[20] and
  • expanded protections for victims under Military Rules of Evidence 513 and removed the “constitutionally required” exception to the Rule.[21]

The 2016 NDAA continued the trend of expanding victims’ rights and SVC involvement in the military justice process.[22] This NDAA:

  • further expanded appellate enforcement of victims’ rights,[23]
  • expanded SVC representation to DoD civilian employees,[24]
  • expanded the authority of SVCs to provide assistance with complaints against the government,[25] and
  • mandated that investigators notify victims of their right to an SVC.[26]

The 2017 NDAA was signed into law on 23 December 2016.[27] Though this NDAA again contained sweeping changes to the military justice system, the most notable for SVC practice is the emphasis on retaliation in connection with reports of sexual assault and hazing in the Armed Forces,[28] as these are a continuing issue for victims of sexual assault. The 2017 NDAA also includes the Military Justice Act of 2016, which provides significant changes to the military justice system, including changes affecting the SVC program and victims’ rights.[29] Specifically, the 2017 NDAA:

  • mandated that defense interviews of a victim be conducted in the presence of either counsel for the Government, an SVC, or a victim advocate, if the victim requests this,[30]
  • mandated that rape and sexual assault, and attempts to commit rape or sexual assault, of either an adult or child, be tried at a General Court-Martial,[31]
  • provided that victims will receive a copy of the Record of Trial in any case in which they testify, not just Article 120 cases,[32] and
  • provided that in imposing a sentence, a court-martial shall consider, among other things, the impact of the offense on “the financial, social, psychological, or medical well-being of any victim of the offense,” and the impact of the offense on “the mission, discipline, or efficiency of the command of the…victim of the offense.”[33]

It is important to note that each Service has implemented their victims’ counsel programs slightly differently, and there are subtle distinctions between how victims’ counsel in each Service operate.

Specific Victims’ Counsel Provisions in the Air Force and Sister Services

Though the NDAAs provide the framework and authorization for the SVC program, many statutory changes require specific implementation by the Service secretaries. Specifically, 10 U.S.C. § 1044 states that legal assistance programs are to be provided “[u]nder such regulations as may be prescribed by the Secretary concerned, [and that] the Judge Advocate General…is responsible for the establishment and supervision of [the Service’s] legal assistance programs.”[34] Within the Air Force, the Secretary of the Air Force has prescribed legal assistance broadly through Air Force Policy Document (AFPD) 51-5. AFPD 51-5 implements 10 U.S.C. § 1044 through AFI 51-504, which has been amended from time to time by The Judge Advocate General (TJAG).[35] On 15 December 2016, our current guidelines, AFGM 2016-01 to AFI 51-504, were published.[36] The updates to AFI 51-504 through AFGM 2016-01 incorporate many changes set out in the NDAAs and clarify how the Air Force should implement those changes.

Before diving into Air Force-specific provisions, it is important to note that each Service has implemented their victims’ counsel programs slightly differently, and there are subtle distinctions between how victims’ counsel in each Service operate. Generally speaking, regardless of which Service the subject is from, a victim requesting assistance of counsel will receive a victims’ counsel from the same Service as the victim. Consequently, Air Force SVCs appear in sister Service courts and vice versa. Air Force military justice practitioners should not be surprised if sister Service victims’ counsel appear for an Air Force court-martial, and should therefore understand some general differences between the various victims’ programs. Briefly, Army SVCs align under the base Staff Judge Advocate (SJA) by working under the Chief of Legal Assistance.[37] As such, Army SVCs receive guidance through their traditional legal assistance channels. The Navy Victims’ Legal Counsel (VLC) program falls under a separate chain of command, similar to the Air Force SVC program structure.[38] Both Army and Navy victims’ counsel represent only victims of sexual assault. Marine VLCs also fall under a separate chain of command outside the base legal offices,[39] but Marine VLCs represent victims of all crime, not just victims of sexual assault.[40] There are other differences between the ways the Services represent victims, all of which can be found by referencing each Services’ instructions. Regardless of what branch of Service the victim or victims’ counsel is from though, the rules of the convening court will govern the conduct of that counsel.

Regardless of what branch of Service the victim or victims’ counsel is from though, the rules of the convening court will govern the conduct of that counsel.

AFGM 2016-01 to AFI 51-504

The Current State of the SVC Program

Returning to Air Force-specific provisions, on 15 December 2016, TJAG published AFGM 2016-01 to AFI 51-504.[41] This AFGM was created in part “to provide guidance on the Special Victims’ Counsel Program.”[42] One of the major changes to the AFI was the addition of Chapter 5 concerning the SVC program. Though the chapter is not extensive, it contains many provisions applicable to how SVCs and legal offices interact, codifies what Services SVCs can provide to clients, and sets out what SVCs can expect from legal offices and others in the military justice process.[43] There are some key takeaways from the AFGM that require discussion in detail, as these provisions clarify the current state of the SVC program and what legal offices and other military justice practitioners should expect from SVCs.

One bedrock principle for SVCs is independence. Just as ADC representation of individual clients sometimes conflicts with the government’s interests, SVC representation of an individual client can also conflict with the government’s position on a case. Granted, victim interests often align with the government when both want to pursue a court-martial or other disciplinary action. However, it is not uncommon for the victim and the government to have divergent views on how that discipline should be carried out. In the same way legal offices advise commanders on the myriad of options available to them to dispose of a sexual assault allegation, SVCs counsel their clients on these same options and provide guidance on what to expect based upon the facts and information available to them. SVCs advise clients on the likelihood a commander will pursue various options and attempt to manage their clients’ expectations based upon the SVC’s experience.

However, victims may want to see the government pursue a disposition that falls outside what the legal office recommends to a commander. In those instances, SVCs have a responsibility to advocate for their client’s interests. This concept is set out in paragraph 5.2.3 of the new AFI: “SVCs provide independent legal representation which might include opposing the government of the United States in order to promote the individual interests of their clients without regard to how their actions might otherwise affect the Air Force as an institution.” In those instances when SVCs advocate for something different from what the legal office might recommend, military justice practitioners should recognize the SVC’s obligation to provide independent representation to an individual client, and that the SVC must do so with the same zeal and fervor expected of any attorney as required by the Air Force Rules of Professional Conduct and that attorney’s state bar rules.

SVCs’ independent representation also requires them to have adequate information in order to assess cases and advise their clients appropriately.

SVCs’ independent representation also requires them to have adequate information in order to assess cases and advise their clients appropriately. AFGM 2016-01 to AFI 51-504 clarifies what information SVCs should expect to receive from legal offices to assist them in their professional responsibilities. Per paragraph 5.2.5, SVCs and SVPs have the authority to review relevant records within the government’s control in order to perform their duties. This has been the guidance for quite some time, but is one area in which SVCs and legal offices sometimes fail to see eye-to-eye. A 2014 AFJAG Opinion analyzed the issue of information sharing under the Privacy Act and Freedom of Information Act.[44] OpJAGAF 2014/03 states that SVCs can, “at the discretion of the record [office of primary responsibility], obtain relevant Air Force Privacy Act records that are necessary to perform their assigned duties. SVCs can also obtain relevant non-Privacy Act records pursuant to their functional/official use request for such records.”[45] In the analysis portion, the opinion identifies that under DoD 5400.11-R, Department of Defense Privacy Program, if an SVC needs a record to perform their assigned duties, and if the intended use of the record generally relates to the purpose for which the record is maintained, the record can be released to the SVC. The new paragraph 5.2.5 in AFI 51-504 contains a condensed summation of OpJAGAF 2014/03: “Reliance on the SVC’s reasonable explanation as to why a particular…record is necessary…is usually sufficient to meet the official use request test under DoD 5400.11-R.” For SVCs to fulfill their professional responsibilities to their clients, they need access to relevant information within the government’s control.

SVCs cannot provide the representation required of them if they do not have sound information upon which to base their legal advice to clients. Before withholding information from an SVC or redacting significant information from a record, a legal office should consider how withholding that information might affect a victim’s input on disposition. Victims have certain rights, including the right to consult with the government,[46] the right to be heard,[47] and the right to be treated with fairness and with respect for their dignity and privacy.[48] For those rights to be meaningful and for an SVC to help a victim adequately exercise those rights, the SVC must have access to relevant case information. If a victim is considering exercising or waiving any of those rights, that decision should be knowing, voluntary, and informed. Victims cannot be fully informed, or make a voluntary and knowing decision, without having all of the pertinent information. Much like ADCs, SVCs cannot simply rely upon the legal office’s assessment of the evidence in advising their clients.

Perhaps the most confusing area of SVC representation for military justice practitioners is determining who is entitled to SVC representation.

The SVC Detailing Process

Perhaps the most confusing area of SVC representation for military justice practitioners is determining who is entitled to SVC representation. This area has evolved with almost every NDAA, so confusion is understandable. Paragraph 5.5 of the new AFGM illustrates how to obtain SVC services for a victim, paragraph 5.6 details who is eligible for SVC representation, and paragraph 5.7 details the Extraordinary Circumstances Request (ECR) process for those seeking SVC representation who are not automatically eligible for services under paragraph 5.6. Contained in these three paragraphs is everything a military justice practitioner needs to know about obtaining SVC services for a victim. First and most importantly, paragraph 5.5.1 mandates that victims of sexually related offenses be informed of SVC assistance as soon as they seek assistance. This includes victims who might seek assistance from a military justice practitioner first. Practice point–make discussion of the SVC program a matter of routine when meeting with any victim for the first time. Do not rely upon others to meet this obligation for you or assume it was properly done by other agencies. Next, if a victim seeks SVC assistance at any point, paragraph 5.5 sets out the information an SVC office will need before detailing an SVC. In order to facilitate collection of this information, the SVC program created and sent a standard form to all legal offices and SARCs. However, legal offices can also utilize the templates contained in the new Attachments 4 and 5 of AFI 51-504 to provide that information to an SVC. Another important point in paragraph 5.5.8 is that requests for specific SVCs will be considered on a case-by-case basis. SVCs are typically detailed to cases based upon geographic location, proximity to the victim or the prosecuting base, and the individual SVC’s caseload and availability. As such, requests for a specific SVC must be carefully vetted.

Though paragraph 5.6 identifies who is automatically entitled to an SVC, the SVC program routinely receives requests for SVC assistance from an individual who might not automatically qualify under paragraph 5.6. In those instances, the office receiving the request begins the ECR process by forwarding the above-referenced request form to the servicing SVP, who then forwards the request to the Senior SVC. As stated in paragraph 5.7.4, the Senior SVC routes ECRs to the Chief of the SVC Division (AFLOA/CLSV). The SVC Division Chief is the first level of approval authority for ECRs. If the Chief recommends denying the ECR, the Chief routes the request to the Director, Community Legal Services (AFLOA/CLS), who again can either approve the ECR or recommend denying the ECR. If the Director recommends denying the ECR, the Director routes the request to the AFLOA Commander for a final decision. Only the AFLOA Commander (AFLOA/CC) has authority to deny an ECR.[49] Should you meet a victim requesting an SVC who is not automatically entitled to an SVC under paragraph 5.6, first review the threshold requirements for ECRs found in paragraphs 5.7.1 and 5.7.2. A non-exclusive list of factors considered in granting or denying an ECR is also found in paragraph 5.7.3. If a military justice practitioner feels strongly that a victim should receive SVC assistance, the practitioner should highlight the above factors and provide any additional information in the request that might be compelling or that might establish a nexus to an Air Force interest. ECRs are decided on a case-by-case basis. Victims receiving an SVC through the ECR process generally have a compelling reason that warrants detailing an SVC. Often the legal office, in consultation with the Senior SVC, identifies those compelling interests for consideration. Additionally, if the AFLOA Commander previously denied an ECR, but additional facts discovered after the denial make approval more appropriate, referral agencies may submit a new request by highlighting the changed facts. Should you find yourself in that situation, please contact your Senior SVC for more guidance.

Other SVC Provisions in AFGM 2016-01

Aside from providing guidance to military justice practitioners, the AFGM articulates what SVCs do day-to-day in representing their clients. The services provided vary from client to client, but broadly speaking, SVCs provide “representation, consultation, and advocacy” concerning rights and obligations as set out in paragraph 5.9 of the AFI. SVCs also provide a vast array of legal assistance to clients, where that legal assistance has a nexus to the sexual assault. One commonly overlooked matter when it comes to victims represented by SVCs is the obligation for investigators, law enforcement agencies, trial counsel, defense counsel, and their support staff to obtain SVC consent prior to communicating with a represented victim as articulated in paragraph 5.8.1 and, for legal office and defense personnel, the Air Force Rules of Professional Responsibility.

Additionally, the AFGM answers a frequently asked question of SVCs – do SVCs represent victims for collateral misconduct? “Collateral misconduct means misconduct allegedly committed by a victim of a sexually-related offense while on active duty in the Air Force and that misconduct has a direct nexus to the sexually-related offense.”[50] An example of collateral misconduct is where an underage victim may have consumed alcohol prior to the sexual assault. In those instances where a victim might have committed collateral misconduct, an SVC will advise the client of their right to seek assistance from an ADC.[51] If the victim wants to meet with an ADC, the SVC will coordinate with the Senior Defense Counsel or directly with the Trial Defense Division (AFLOA/JAJD) to request an ADC for the victim.[52] Beyond instances of minor misconduct, if a victim wants to be represented by an SVC in lieu of an ADC where the misconduct may result in court-martial for the victim, the SVC coordinates with AFLOA/JAJD to process an individual military defense counsel request.[53]

For anyone desiring to serve as an SVC or SVP, paragraph 5.3 of the AFGM discusses SVC and SVP qualifications. SVCs must be certified under Article 27(b) and their current SJA must recommend them for the position through the Professional Development Directorate (JAX) nomination process. SVPs are Special Duty Category volunteer positions. Paralegals seeking to serve as SVPs must have a favorable recommendation from their current SJA. Both SVC and SVP positions are non-deployable billets per paragraph 5.3.8. Additionally, though an SVC and SVP performs a myriad of duties, some characteristics found in all good SVCs and SVPs include justice experience, legal assistance experience, and the ability to work independently since SVCs and SVPs often work autonomously in stand-alone SVC offices. Other important characteristics include competence in the law, courage to stand up for your clients, compassion, creativity, the ability to see and solve problems from different angles, personality, and strong leadership qualities. In addition to the SVC and SVP positions, there are six O-4 or O-5 Senior SVC positions. The Senior SVC supervises all attorneys and paralegals within their circuit, in addition to representing victims in complex or high-visibility cases. If these positions are something you are considering, or something you have additional questions about, please do not hesitate to contact anyone within the SVC program to talk further about the program and about what it takes to be a good SVC or SVP.

Conclusion

The SVC program has greatly expanded in its short existence. Today there are over fifty Air Force SVCs and Senior SVCs, and over thirty SVPs spread throughout the five circuits at over forty-two military installations. As the program continues to expand and evolve, especially in light of the Military Justice Act of 2016, we anticipate more victim-related changes in the future. AFGM 2016-01 to AFI 51-504 is one example of the most recent developments in the SVC program, and this article highlighted only some of the changes in the AFGM. If you have questions about the SVC program, SVCs and SVPs stand ready to assist in any way possible and to aid victims of sexual assault navigate the winding road through the justice process.

About the Authors

Lieutenant Colonel Rhea A. Lagano, USAF

(B.A., Binghamton State University; J.D. University of North Carolina School of Law) is the Senior Special Victims’ Counsel for the Eastern Circuit, Joint Base Langley, Virginia.

Major Sarah W. Edmundson, USAF

(B.A., Illinois Wesleyan University; J.D. Chicago-Kent College of Law) is the Senior Special Victims’ Counsel for the Western Circuit, Travis Air Force Base, California.

Major Dustin L. Grant, USAF

(B.S., Kansas State University; M.P.A., University of Wyoming; J.D. Washburn University School of Law) is the Senior Special Victims’ Counsel for the Central Circuit, Joint Base San Antonio-Randolph, Texas.

Endnotes

[1] Memorandum from Sec’y of Def. for Sec’ys, of the Military Dep’ts et al., Sexual Assault Prevention & Response (Aug. 14 2013) [hereinafter SecDef Memo], available at http://sapr.mil/public/docs/news/SECDEF_Memo_SAPR_Initiatives_20130814.pdf
[2] Dep’t of Def. Authorization Act of 1985, Pub. L. No. 98-525, § 651 (1984).
[3] Nat’l Def. Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 581 (2011).
[4] Memorandum from Gen. Counsel, Office of the Gen. Counsel of the Dep’t of Def., Legal Assistance to Victims of Sexual Assault (Nov. 9, 2012) [hereinafter OSD/GC Memo].
[5] See sources cited supra note 2.
[6] Id.
[7] Nat’l Def. Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 (2013) [hereinafter 2014 NDAA].
[8] Id. § 1716.
[9] Id. § 1701.
[10] Id. § 1702.
[11] Id. § 1703.
[12] Id. § 1704.
[13] Id. § 1705.
[14] Id. § 1706.
[15] Nat’l Def. Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 (2014) [hereinafter 2015 NDAA].
[16] Id. § 533.
[17] Id. § 534.
[18] Id. § 534.
[19] Id. § 535.
[20] Id. § 536.
[21] Id. § 537.
[22] Nat’l Def. Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 (2015) [hereinafter 2016 NDAA].
[23] Id. § 531.
[24] Id. § 532.
[25] Id. § 533.
[26] Id. § 534.
[27] Nat’l Def. Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 (2016) [hereinafter 2017 NDAA].
[28] Id. § 5450.
[29] Id. §§ 5001-5542.
[30] Id. § 5105(c).
[31] Id. § 5162.
[32] Id. § 5238.
[33] Id. § 5301.
[34] 10 U.S.C. § 1044 (2012).
[35] U.S. Dep’t of Air Force, Policy Directive 51-5, Military Legal Affairs para. 13 (27 September 1993).
[36] TJAG first provided specific guidance for implementing the SVC program in AFGM1 to AFI 51-504. AFGM1 predated passage of 10 U.S.C. § 1044e in the 2014 NDAA. As such, AFI 51-504 first implemented the SVC program under the guidance of the 9 November 2012 OSD/GC memo, and technically did not incorporate specific changes from the 2014-2016 NDAAs until later.
[37] U.S. Dep’t of Army, Special Victims’ Counsel Handbook para. 2-2 (3d ed. 2016).
[38] U.S. Dep’t of Navy, Judge Advocate General of the Navy Instr. 5810.3, Navy Victims’ Legal Counsel Program Manual (2015).
[39] U.S. Marine Corps, Order P5800.16A, Marine Corps Manual for Legal Administration para. 6002(1) (1999).
[40] Id. para. 6003.
[41] U.S. Dep’t of Air Force, Guidance Memo. 2016-01 to Instr. 51-504, Legal Assistance, Notary, and Preventive Law Programs (2016) [hereinafter AFI 51-504_AFGM 2016-01].
[42] Id.
[43] Though the AFGM was published in December 2016, the Air Force, and the Air Force SVC program specifically, have been operating in accordance with the updates to the NDAA, and largely in accordance with the guidelines published in the AFGM. Essentially, the AFGM codified much of what SVCs have been doing since the program’s inception.
[44] Special Victims’ Counsel Requests for Air Force Records Under the Privacy Act and Freedom of Information Act, Op. JAG, Air Force, No. 2014/03 (Jul. 1, 2014).
[45] Id.
[46] 10 U.S.C. § 806b(5) (2012).
[47] Id. § 806b(4).
[48] Id. § 806b(10).
[49] Note that in AFLOA/CC’s absence, this authority is delegated to the Vice Commander. In the absence of both the Commander and Vice Commander, the Deputy Judge Advocate General (DJAG) will take final action.
[50] See sources cited supra note 41, para. 5.9.2.1.
[51] Id. para. 5.9.2.2.
[52] Id. para. 5.9.2.2.1.
[53] Id. para. 5.9.2.2.3.

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