JUDICIAL 

PROCEEDINGS 

PANEL

INITIAL REPORT

February 2015
JUDICIAL PROCEEDINGS PANEL

CHAIR

The Honorable Elizabeth Holtzman

MEMBERS

The Honorable Barbara S. Jones

Mr. Victor Stone

Professor Thomas W. Taylor

Vice Admiral Patricia A. Tracey, U.S. Navy, Retired

STAFF DIRECTOR

Lieutenant Colonel Kyle W. Green, U.S. Air Force

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Kelly McGovern, U.S. Army

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICIAL

Ms. Maria Fried
Report of the Judicial Proceedings 

Since Fiscal Year 2012 Amendments Panel

INITIAL REPORT

–Article 120 of the Uniform Code of Military Justice 

– Special Victims’ Counsel Programs 

–Rights and Needs of Sexual Assault Victims 

Throughout the Judicial Process 

–Victim Privacy Issues in Military Sexual Assault Cases — 

Privileges and Protections

February 2015

JUDICIAL PROCEEDINGS PANEL

 

One Liberty Center • Suite 150 • 875 North Randolph Street • Arlington, VA 22203

 

 

February 4, 2015

The Honorable John McCain The Honorable Jack Reed

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States Senate United States Senate

Washington, DC 20510 Washington, DC 20510

The Honorable Mac Thornberry The Honorable Adam Smith

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States House of United States House of

Representatives Representatives

Washington, DC 20515 Washington, DC 20515

The Honorable Charles Hagel

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000

Dear Chairs, Ranking Members and Mr. Secretary:

We are pleased to submit the initial report of the Judicial Proceedings Since Fiscal 

Year 2012 Amendments Panel (JPP), as required by section 576 of the National Defense 

Authorization Act for Fiscal Year 2013. This report summarizes the JPP’s assessments from 

the first six months of our review of judicial proceedings for adult sexual assault and related 

offenses conducted under the Uniform Code of Military Justice (UCMJ) since 2012, when 

Article 120 of the UCMJ was amended. 

To gather information for this report, the JPP held seven days of public meetings, in 

which we heard from military leaders, sexual assault survivors, sexual assault advocacy 

groups, DoD and civilian victim services personnel, military and civilian prosecutors, defense 

counsel and victims’ counsel, academics and subject matter experts, legislators, and private 

citizens. We also received thousands of pages of documents from the Department of 

Defense, the Military Services, and civilian victim advocacy organizations in response to our 

requests for information.

For this initial report, we focused on Article 120 of the UCMJ, the Special Victims’ 

Counsel Program and victim rights, and victim privacy issues in sexual assault crimes. We 

made eleven recommendations and referred seventeen issues for additional consideration by 

a subcommittee. The JPP will continue its review through September 2017, and future 

reports will address issues discussed in this report and other topics assigned for our 

consideration.

Elizabeth Holtzman,

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey
-2-

The JPP expresses sincere appreciation to everyone who contributed to this report. 

We especially want to thank the sexual assault survivors who participated in our meetings 

and shared their personal insights and perspectives in an effort to help others and improve 

military judicial proceedings.

Respectfully submitted,

_______________________________

Honorable Elizabeth Holtzman, Chair

____________________________ _____________________________

Honorable Barbara S. Jones Victor Stone

___________________________ ____________________________

Thomas W. Taylor Patricia A. Tracey
1

Contents

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF PANEL RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. OVERVIEW OF THE JPP’S ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. JPP Responsibilities 

B. Initial Topics for Assessment

C. Methodology of Review

D. Recent and Ongoing Legislative and Policy Initiatives

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE . . . . . . . . 21

A. The Evolution of Article 120

B. The 2012 Reforms to Article 120 

C. Coercive Sexual Relationships and Abuse of Authority

D. Separating Penetrative and Contact (Non-penetrative) Offenses 

E. JPP Analysis and Recommendations on Article 120

III. SPECIAL VICTIMS’ COUNSEL PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . 47

A. Overview of the Special Victims’ Counsel Programs

B. Special Victims’ Counsel Selection and Experience

C. Special Victims’ Counsel Training

D. Geographic Location and SVC Staffing

E. Victim Eligibility Requirements

F. Notification of the Availability of Legal Assistance and the Scope of Representation

G. SVC Program Oversight and Evaluation

IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS 

THROUGHOUT THE JUDICIAL PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

A. Victims’ Rights Under the UCMJ

B. Victims’ Notice and Access to Information

C. Victims’ Right to Be Reasonably Heard 

D. Victims’ Mechanisms for Enforcing Rights

E. JPP Analysis and Recommendations on Victims’ Rights and Needs
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – 

PRIVILEGES AND PROTECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

A. Competing Interests and Distinct Challenges

B. Military Rule of Evidence 412 (Sex Offense Cases: Relevance of Alleged Victim’s Sexual 

Behavior or Sexual Predisposition)

C. Military Rule of Evidence 513 (Psychotherapist-Patient Privilege)

APPENDIXES

A. Judicial Proceedings Panel Authorizing Statutes

B. Judicial Proceedings Panel Members

C. Staff Members and Designated Federal Officials

D. Presenters at the JPP Public Meetings

E. Acronyms and Abbreviations

F. Sources Consulted
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Executive Summary

RESPONSIBILITIES OF THE JUDICIAL PROCEEDINGS PANEL

Congress directed the Judicial Proceedings Panel (JPP) “to conduct an independent review and 

assessment of judicial proceedings conducted under the Uniform Code of Military Justice [UCMJ] 

involving adult sexual assault and related offenses” after the 2012 amendment of Article 120 of the 

UCMJ, “for the purpose of developing recommendations for improvements to such proceedings.” 

The Secretary of Defense appointed five members to the JPP in June 2014, and this Panel held its first 

meeting in August. Congress required the JPP to submit its first report within 180 days after its first 

meeting and subsequent reports through fiscal year 2017. 

Congress assigned numerous duties to the JPP covering a wide array of topics, and the Response 

Systems to Adult Sexual Assault Crimes Panel (RSP), which completed its report in June 2014, 

recommended additional issues for the JPP to consider. The JPP began its review by examining key 

issues in military judicial proceedings. This first report covers the following topics: 

• the effect and implementation of the 2012 amendments to Article 120 of the UCMJ;

• the effect and implementation of special victims’ counsel programs by the Department of 

Defense and the military Services;

• victim privacy issues in military sexual assault cases; and

• the rights and needs of sexual assault victims to receive case information and participate in the 

military judicial process.

To conduct its review and assessment, the JPP held seven days of public meetings with more than 100 

witnesses. In addition, the JPP received and reviewed thousands of pages of documents provided by 

the Department of Defense (DoD), the military Services, and victim advocacy organizations. A member 

of the JPP also attended a training course conducted by the Army for newly assigned special victims’ 

counsel.

ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Article 120 is the statute used to prosecute sexual assault crimes under the UCMJ. It has been 

substantially revised since the UCMJ was first adopted in 1951. The most recent version, enacted 

by Congress in 2012, incorporates all sexual assault offenses under the UCMJ into a single article. 

Although Article 120 was amended in June 2012, the JPP noted that the President has not yet signed 

guidance to define elements of the statute’s offenses or provide model specifications for prosecutors. 

Such guidance is essential for military justice practitioners to understand and implement the revisions 

to Article 120 in order to effectively investigate, prosecute, and defend sexual assault cases. The review 

process for issuing Article 120 guidance appears to have involved extensive delays both within and 

outside DoD, which have created serious obstacles for practitioners. In the view of the JPP, the process 

is moving too slowly and should be streamlined.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

In the 2012 version of Article 120, the JPP identified nine issues related to the definitions of terms 

and two issues related to its elements and to enumerated offenses. Some presenters before the JPP 

indicated that the lack of clarity or specificity in some definitions may create difficulty or uncertainty 

in prosecuting cases, though many said further revisions to Article 120—a statute significantly revised 

twice in recent years—would make prosecutions more complex. While additional amendments may 

complicate the jobs of prosecutors, the JPP is concerned because sexual assault prevention training 

for all Service members uses language from Article 120, and vague terms may leave members of the 

military confused about standards of behavior and expectations. The JPP believes that the issues 

identified regarding the current statute are complicated and that additional consideration is necessary. 

We recommend that a subcommittee be appointed to continue examining each issue and provide 

recommendations.

The JPP also considered how the military prosecutes crimes under the UCMJ involving abuse of 

authority, including relationships between trainers and trainees, recruits and recruiters, and senior and 

subordinate military members in the same chain of command. The JPP heard from military justice 

officials and practitioners on the questions of whether the current practice of charging inappropriate 

relationships or maltreatment under articles of the UCMJ other than Article 120 was effective and 

appropriate and whether, under the 2012 version of the UCMJ, prosecutors can charge coercive 

sexual relationships as sexual assault under Article 120. The JPP also heard suggestions to change 

how coercive sexual relationships are addressed. We heard proposals to amend Article 120 to add 

specific provisions for prosecuting such relationships or to create strict liability for offenses committed 

by basic training instructors against trainees. We also heard proposals to add coercive sexual 

relationships currently charged under other articles of the UCMJ to DoD’s list of offenses that trigger 

sex offender registration. The JPP recommends that a subcommittee examine these issues and provide 

recommendations.

Finally, the JPP reviewed whether Article 120 should be split into two separate articles for penetrative 

and contact (non-penetrative) offenses. In the JPP’s view, such bifurcation of sex offenses is unnecessary 

and would create further confusion. The JPP recommends against dividing Article 120 and does not 

believe further evaluation of this issue is warranted.

SPECIAL VICTIMS’ COUNSEL PROGRAMS

The military Services and Department of Defense created special victims’ counsel (SVC) programs in 

2013. Congress mandated in the National Defense Authorization Act for Fiscal Year 2014 that each 

Service establish an SVC program for the purpose of providing legal assistance to military victims 

of sexual assault. The JPP reviewed the organization and staffing of the Services’ SVC programs 

and heard from stakeholders in the military justice system to assess how counsel who serve as SVCs 

represent and support victims of sexual assault. 

DoD has not standardized the organization of the SVC programs, and the military Services have 

structured their programs differently. SVCs in four Services work under independent chains of 

command, while SVCs in the Army work within the legal assistance office of the installation staff 

judge advocate. Irrespective of whether SVCs report to an independent organization or to installation 

leadership, the JPP believes that SVCs must be fully devoted to their clients’ interests. SVCs must be 

able to advocate candidly and forthrightly on behalf of their clients, including placing their clients’ 

priorities above those of their Service, without fear of harm to their career, retribution, or retaliation. 

Before making a recommendation about whether one reporting structure is preferable to another, the 

JPP will seek additional information from the Services on the rationale for their program’s structure 
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EXECUTIVE SUMMARY

and on the safeguards that protect SVCs when their client’s interest runs contrary to the interests of the 

command or unit. 

Another concern of the JPP is that the statutory requirement for SVC services is tied to the entitlement 

for legal assistance services. This requirement may leave some victims of sexual assault perpetrated by 

Service members beyond the reach of the SVC program, because under the statute they are not entitled 

to legal assistance services. The JPP intends to continue to review additional information about victim 

demographics and SVC eligibility requirements.

SVCs play an important role in the military justice process, and the JPP believes that counsel appointed 

to serve as SVCs need adequate criminal justice experience to ensure their competence to represent 

the rights and interests of their clients. The military justice system is not well served by inexperienced 

SVCs. For SVC programs to succeed, leaders and others in the military Services must be confident 

that SVCs help victims and improve the justice system. Requiring SVCs to have adequate experience 

is essential to that success. JPP members agree that current SVC training is sufficient, but this Panel is 

concerned that DoD has no program in place to assess training quality and effectiveness. In addition, 

the JPP recommends that DoD develop a policy to standardize and evaluate both the substantive 

training requirements and the time frame within which SVCs receive training to ensure that newly 

assigned SVCs are sufficiently prepared beforehand for their duties. DoD should make certain that 

measures are in place to assess and monitor the quality and effectiveness of training.

The JPP also considered where SVCs are assigned and how that location influences their ability to serve 

their clients effectively. The JPP urges the Services to place SVCs where they can most readily have 

face-to-face interactions with clients. The JPP recognizes that budget and logistics necessarily affect 

the number and locations of SVC offices, and it commends the initiatives described by the Services 

to overcome problems caused by the geographic separation between SVCs and their clients. The JPP 

encourages the Services to regularly monitor the distribution of SVC resources and to continue to 

implement inventive and efficient ways to serve clients. 

The JPP is concerned about a lack of standardized assessment and evaluation of the operations of 

the SVC programs, for which metrics have not yet been developed. Such metrics are necessary to 

communicate realistic expectations and then judge how well the programs perform. DoD needs to 

oversee the establishment of program performance measures and evaluations. In addition to sharing 

best practices, the Services should collaborate on assessment measures. Assessment measures should 

include, but should not be limited to:

• victim satisfaction surveys; 

• the rate at which victims who file restricted and unrestricted reports use the services of SVCs;

• the rate at which victim clients who have filed restricted reports convert their reports to 

unrestricted; 

• the rate at which victim clients choose not to continue, or drop out of, investigation and 

judicial resolution of their case;

• use of the expedited transfer program and whether those victims who use the program stay in 

or leave the military; 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

• the rate at which SVC victim clients elect to stay in the military compared to the rate for those 

who do not receive assistance from SVCs; and 

• delays in investigations or judicial proceedings attributable to SVC participation as compared 

to delays in cases that do not involve SVCs.

Rather than applying different evaluation standards, it is important to develop metrics uniformly 

across the military Services to assess client satisfaction and program performance. DoD should 

evaluate, monitor, and report on the SVC programs; provide guidance to the Services; and ensure 

centralized, standardized assessment of SVC program effectiveness.

RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGH 

THE JUDICIAL PROCESS

The Crime Victims’ Rights Act (CVRA), passed by Congress in 2004, grants procedural and 

participatory rights to all victims of federal crimes. The CVRA does not expressly state whether it 

applies to crime victims of federal offenses prosecuted under the UCMJ. In 2014, Congress codified 

victims’ rights into the military justice process as Article 6b of the UCMJ and specified that guidance 

for implementing these rights be established within one year. That deadline has passed, but DoD and 

the military Services continue to work to develop policy and practices to support the rights and needs 

of sexual assault victims during the judicial process. 

Delays in issuing guidance to implement Article 6b of the UCMJ, like the delays that have impeded 

effective application of the 2012 version of Article 120, pose a significant obstacle for victims to 

fully exercise their right to be heard, their right to notice, and their access to case information and 

documents. Many practitioners told the JPP that inconsistent practices and procedures complicate the 

efforts of SVCs to adequately represent their clients and assert their clients’ rights in court.

Lack of access to case information and documents is a particular problem for victims and victims’ 

counsel. Civilian experts told the JPP that victims’ counsel must have access to information similar 

to that afforded to prosecutors and defense counsel to effectively represent their clients in judicial 

proceedings. SVCs testified that equal access is especially crucial when advising victims in the military 

justice system.

The military Services have begun to address this need for access to information, but recent guidance 

from leadership of the Services’ Judge Advocate General’s Corps either focuses too narrowly on 

specific documents and evidentiary issues or improperly relies on the Privacy Act and Freedom of 

Information Act (FOIA). SVCs should not have to file FOIA requests to retrieve relevant information 

about proceedings in which their clients have a concrete, particularized interest. The JPP recommends 

that DoD direct the Services to ensure that SVCs and victims have appropriate access to docketing 

information and case filings. In part, this could be accomplished by adopting an electronic system akin 

to the civilian PACER (Public Access to Court Electronic Records) service.

Case law and legislation establish that victims have the right to be heard through their SVCs. However, 

the ability of victims to be heard continues to be limited because the rules and procedures for SVCs 

to follow in judicial proceedings remain unclear. The JPP recommends that the Secretary of Defense 

direct the Services to establish uniform practices and procedures concerning SVCs’ participation in all 

military judicial proceedings.
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EXECUTIVE SUMMARY

Finally, Article 6b of the UCMJ does not specify mechanisms for enforcing victims’ rights. In the FY15 

NDAA, Congress legislated that victims may seek review of trial court violations of Military Rules of 

Evidence (M.R.E.) 412 and 513 in the military appellate courts. This is a less robust instrument than 

the right of mandatory interlocutory review with expedited procedures provided for victims under the 

CVRA. The JPP recommends that the Secretary of Defense consider establishing expedited procedures 

for victims to seek mandatory interlocutory review in the Service Courts of Criminal Appeals of 

any alleged violation of victims’ rights. Further, the Secretary of Defense should review statutes and 

regulations to ensure victims are eligible for SVC representation so long as a victim’s right exists and is 

at issue. 

VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – 

PRIVILEGES AND PROTECTIONS

Sexual assault prosecutions frequently involve conflicts between the right of an accused person to 

present a defense and the desire to protect the privacy interests of the alleged victim. In military judicial 

proceedings, evidentiary issues regarding the victim’s sexual history or mental health often are the 

cause of such conflicts, and the JPP reviewed the military rules of evidence that are intended to prevent 

the unwarranted introduction of evidence that unreasonably intrudes into the privacy of sexual assault 

victims. 

M.R.E. 412 is the military’s rape shield rule. Significant public attention has focused on the 

introduction of the sexual history of victims at Article 32 hearings, the UCMJ’s preliminary procedure 

used to consider charges before they are referred to general courts-martial. Congress substantially 

modified Article 32 requirements in the FY14 NDAA, and new implementing guidance signed by the 

President in June 2014 clarifies the authority of Article 32 investigating officers to resolve M.R.E. 412 

matters according to the standards and procedures used by military judges at courts-martial. These 

changes, combined with DoD’s pending proposal to eliminate the “constitutionally required” exception 

to M.R.E. 412 at Article 32 hearings, which the JPP supports, are positive steps toward improving 

safeguards for the privacy of sexual assault victims at pretrial hearings. In light of the FY14 NDAA 

changes, which took effect on December 26, 2014, the JPP will monitor M.R.E. 412 issues at Article 

32 hearings. 

In addition, the JPP will continue its assessment of the application of M.R.E. 412 at courts-martial 

proceedings. Specifically, the JPP will review the scope of relevancy determinations to determine 

whether the rule should be clarified. The JPP will continue to explore the use of the rule’s balancing 

tests and consider whether the “constitutionally required” exception in M.R.E. 412 should be 

eliminated at trial. Before providing recommendations, the JPP intends to conduct its statutory task of 

reviewing case records that involve M.R.E. 412 to better understand the practical impact of such issues 

at courts-martial. 

M.R.E. 513 is the rule of privilege that permits patients to protect their communications with 

psychotherapists. The JPP received testimony that the Services’ practices and procedures for 

determining the admissibility of information contained in mental health records for military judicial 

proceedings are inconsistent. The JPP believes that some of the problems may be alleviated by recent 

amendments to M.R.E. 513. Changes enacted by Congress, which become effective in June 2015, 

will eliminate the “constitutionally required” exception, increase the burden on the party seeking the 

production of mental health records or communications, allow for an in camera review only if the 

moving party meets its burden and such review is necessary to rule on production or admissibility, and 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

narrowly tailor any production or disclosure under the rule. The JPP will continue to monitor how 

M.R.E. 513 matters are addressed in military judicial proceedings in light of these changes.

Although M.R.E. 513 controls access to mental health records in judicial proceedings, the JPP also 

heard that Service guidance and common practice of investigators and commanders in this area are not 

uniform across DoD. Releasing patients’ mental health information or acknowledging that victims are 

receiving counseling are serious invasions of privacy. The JPP wants to ensure that the exceptions to 

disclose mental health information to commanders for the purpose of determining fitness for duty or 

to law enforcement for investigative purposes are limited to those purposes and not used for judicial 

proceedings. The JPP also recommends that DoD issue specific, uniform guidance to ensure that mental 

health records are neither sought from a medical treatment facility by investigators or military justice 

practitioners nor acknowledged or released by medical treatment facility personnel until a military 

judge or Article 32 hearing officer has ordered their production. The JPP intends to continue its 

assessment of this issue.

RECENT AND PENDING LEGISLATION AND POLICY

Laws and policies regarding military judicial proceedings for sexual assault crimes are rapidly evolving. 

Since the JPP began its review, new requirements from previous NDAAs have taken effect and 

additional requirements in the FY15 NDAA have, or soon will, become law. In addition, DoD and the 

military Services continue to revise policies and regulations. DoD recently completed its initial review 

of the RSP’s recommendations from its June 2014 report and will be implementing changes or further 

studying issues that overlap with some JPP tasks.

Many of these amendments and policy revisions affect issues, procedures, and rules that the JPP has 

considered in its meetings since August 2014 and will likely affect the JPP’s assessment over the course 

of its review. The JPP will continue reviewing the effects of these changes in future reports.

OVERALL POLICY IMPLEMENTATION

The JPP recognizes that establishing new policy based on statutory amendments takes time. However, 

the numerous and substantial changes in sexual assault laws have created a confusing landscape 

for victims and practitioners at all levels of military judicial proceedings. To minimize uncertainty, 

implementation of policy and regulations must be accomplished quickly and effectively. As noted 

above, guidance regarding Article 120 elements and model specifications and Article 6b victims’ 

rights procedures and enforcement has not been published. Without guidance, practitioners lack 

critical information they require to accurately and effectively apply statutory revisions. Until 

guidance is published, the JPP cannot fully assess the implementation of those statutes. The JPP 

strongly recommends that the Secretary of Defense examine the DoD and interagency review process 

for establishing guidance to implement statutory provisions of the UCMJ and explore options to 

streamline procedures.
9

EXECUTIVE SUMMARY

CONCLUSION

Since its inception six months ago, the JPP has heard a wide range of perspectives and received a 

substantial amount of information on issues affecting military judicial proceedings for adult sexual 

assault crimes. This introductory report marks the beginning of the JPP’s multiyear mandate to 

provide the Secretary of Defense and Congress with a thorough review and assessment and to make 

recommendations to improve the military justice system. The JPP’s analysis and recommendations 

appear in blue throughout this report. Future reports will review the issues discussed here and expand 

the JPP’s analysis on topics assigned for consideration.

The JPP greatly appreciates the support and cooperation it has received from DoD, the military 

Services, other organizations, and individuals outside the military. With their assistance, the JPP has 

gained invaluable insights and a deeper understanding of how the programs and procedures described 

in this report work within the military justice system. The JPP looks forward to continuing to engage 

with these and other organizations and individuals as it continues its review. 

Sexual assault remains a clear threat to our military’s cohesiveness, morale, and effectiveness and to the 

well-being of the women and men who serve our country in uniform. Through this and future reports, 

the JPP is committed to improving the military judicial proceedings used to adjudicate these crimes. 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
11

Summary of Panel Recommendations

JPP RECOMMENDATIONS

Recommendation 1: The Secretary of Defense examine the DoD and interagency review process 

for establishing guidance for implementing statutory provisions of the UCMJ and explore options 

to streamline the procedures.

• Executive order guidance for implementing the 2012 amendment to Article 120 and the 2013 

incorporation of victims’ rights in Article 6b of the UCMJ have not yet been published.

• Delays in completing executive order guidance for the 2012 provisions of Article 120 have 

resulted in the Services creating their own guidance, procedures, and policies for the statute, 

which may or may not comport with the intent or requirements of the statute or with the 

President’s guidance for its implementation and application. 

• Delays in completing DoD and executive order guidance to implement Article 6b of the UCMJ 

limit the full exercise of victims’ right to be heard, right to notice, and access to case information 

and documents. 

• Without guidance, practitioners lack critical information they require to accurately and 

effectively apply statutory revisions; until guidance is published, this Panel cannot fully assess 

implementation.

Recommendation 2: The Secretary of Defense direct the Services to implement additional 

selection criteria requiring that judge advocates have adequate criminal justice experience before 

they are assigned as special victims’ counsel.

• Experience is necessary to ensure SVCs’ competence to represent the rights and interests of their 

clients. 

• While military justice experience is desirable, prior civilian criminal justice experience may be 

sufficient to give an SVC the familiarity with constitutional and other legal issues needed to 

provide suitable representation.

• This expands on Response Systems Panel Recommendation 47, subsequently adopted by DoD, 

that SVCs have appropriate trial experience, whenever possible, before being selected as special 

victims’ counsel.

Recommendation 3: The Department of Defense develop a policy to standardize both the time 

frame within which to receive SVC training and the substantive requirements of SVC training.

• Newly assigned SVCs must be trained in advance to ensure that they are prepared for their duties. 

At present, some SVCs may begin to serve clients before they receive SVC training.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

• DoD should ensure that measures are in place to assess and monitor the quality and effectiveness 

of training. 

Recommendation 4: The Secretary of Defense direct the Services to perform regular evaluations 

to ensure SVCs’ assignment to locations that maximize the opportunity for face-to-face 

interactions between SVCs and clients, and to develop effective means for SVCs to communicate 

with clients when face-to-face communication is not possible.

• The JPP is cognizant of practical constraints, including monetary and logistical limitations, that 

must be considered when determining the number and locations of SVC offices and commends 

the Services for using other resources to resolve or minimize issues caused by the separation 

between SVCs and clients. 

Recommendation 5: The Secretary of Defense establish appropriate SVC program performance 

measures and standards, including evaluating, monitoring, and reporting on the SVC programs; 

establishing guiding principles for the Services; and ensuring centralized, standardized assessment 

of SVC program effectiveness and client satisfaction.

• Assessment metrics are necessary to determine how the SVC programs are performing.

• SVC programs have been operating for one year, but assessment and evaluation metrics for the 

programs have not yet been developed.

• Rather than allowing different evaluation standards for each Service, metrics should apply 

uniformly across the military Services. 

• Assessment measures should include, but should not be limited to: 

1. victim satisfaction surveys; 

2. the rates at which victims who file restricted and unrestricted reports use the services of 

SVCs;

3. the rate at which victim clients who have filed restricted reports convert their reports to 

unrestricted; 

4. the rate at which victim clients choose not to continue, or drop out of, investigation and 

judicial resolution of their case;

5. use of the expedited transfer program and whether those victims who use the program stay 

in or leave the military; 

6. the rate at which SVC victim clients elect to stay in the military compared to the rate for 

those who do not receive assistance from SVCs; and

7. delays in investigations or judicial proceedings attributable to SVC participation as 

compared to delays in cases that do not involve SVCs.
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SUMMARY OF PANEL RECOMMENDATIONS

Recommendation 6: The Secretary of Defense direct the Services to ensure SVCs and victims have 

appropriate access to docketing information and case filings. In part, this could be accomplished 

by adopting an electronic system akin to the civilian PACER (Public Access to Court Electronic 

Records) service.

• The military Services have recently developed SVC and victim access policies that focus narrowly 

on M.R.E. 412 and M.R.E. 513 issues and are improperly grounded in administrative law—

specifically, the Privacy Act and the Freedom of Information Act, which establish guidance for 

access by the general public.

• SVCs should not have to file FOIA requests to access relevant information about proceedings in 

which their clients have a concrete, particularized interest.

Recommendation 7: The Secretary of Defense direct the Services to establish uniform practices 

and procedures concerning SVCs’ participation for all military judicial proceedings.

• Inconsistent policies and practices regarding SVC participation during court proceedings limit the 

ability of victims to be heard.

Recommendation 8: The Secretary of Defense consider establishing expedited procedures for 

victims to seek mandatory interlocutory review in the Service Courts of Criminal Appeals of any 

alleged violation of victims’ rights.

• The FY14 NDAA did not specify any mechanism to enforce the rights guaranteed by Article 6b, 

and the FY15 NDAA merely recognizes victims’ right to seek discretionary review (i.e., a writ of 

mandamus) in the appellate courts for issues pertaining to M.R.E.s 412 and 513.

• In federal civil and criminal cases, the CVRA establishes mandatory and expedited interlocutory 

review of any trial court decision pertaining to a victim’s right. The CVRA does not expressly 

state whether it applies to victims of offenses prosecuted under the UCMJ.

Recommendation 9: The Secretary of Defense propose timely revisions to statutes, the MCM, 

and/or regulations to extend eligibility for SVC representation so long as a right of the victim 

exists and is at issue.

• The Response Systems Panel made a similar suggestion, Recommendation 44, which DoD 

subsequently referred to the Joint Service Committee.

• The right of victims to be heard is at particular risk when they are no longer in contact with their 

SVC, or in cases in which they have declined representation in the first place.

Recommendation 10: The President sign an executive order eliminating the “constitutionally 

required” exception within M.R.E. 412 at Article 32 hearings.

• The JPP supports the Joint Service Committee’s proposal to eliminate the exception and agrees 

with DoD’s rationale that the “constitutionally required” exception is not necessary if there is not 

a right to confrontation at the pretrial hearing.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

Recommendation 11: The Secretary of Defense issue specific, uniform guidance to ensure that 

mental health records are neither sought from a medical treatment facility by investigators or 

military justice practitioners nor acknowledged or released by medical treatment facility personnel 

until a military judge or Article 32 hearing officer has ordered their production.

• Guidance and common practice among investigators in obtaining mental health records are not 

uniform across DoD.

• Mental health records, which are sometimes sought in advance to be readily available for use at 

Article 32 hearings or trial, should not be released from a military treatment facility without an 

order from a military judge or the hearing officer.

ISSUES THAT SHOULD BE DIRECTED TO A SUBCOMMITTEE FOR 

FURTHER EVALUATION

ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

a. Issues Related to Definitions and Elements

• Issue 1: Is the current definition of “consent” unclear or ambiguous?

• Issue 2: Should the statute define defenses relying on the victim’s consent or the accused’s mistake 

of fact as to consent in sexual assault cases?

• Issue 3: Should the statute define “incapable of consenting?”

• Issue 4: Is the definition concerning the accused’s “administration of a drug or intoxicant” 

overbroad?

• Issue 5: Does the definition of “bodily harm” require clarification?

• Issue 6: Is the definition of “threatening wrongful action” ambiguous or too narrow?

• Issue 7: How should “fear” be defined to acknowledge both subjective and objective factors?

• Issue 8: Is the definition of “force” too narrow?

• Issue 9: Are the definitions of “sexual act” and “sexual contact” too narrow, or are they overly 

broad?

• Issue 10: Should the accused’s knowledge of a victim’s capacity to consent be a required element 

of sexual assault?

• Issue 11: Should the offense of “indecent act” be added to the UCMJ as an enumerated offense?
15

SUMMARY OF PANEL RECOMMENDATIONS

b. Issues Related to Coercive Sexual Relationships and Abuse of Authority

• Issue 12: Is the current practice of charging inappropriate relationships or maltreatment under 

articles of the UCMJ other than Article 120 appropriate and effective when sexual conduct is 

involved?

• Issue 13: Does the 2012 version of the UCMJ afford prosecutors the ability to effectively charge 

coercive sexual relationships or those involving abuse of authority under Article 120?

• Issue 14: Should the definition of “threatening or placing that other person in fear” be amended 

to ensure that coercive sexual relationships or those involving abuse of authority are covered 

under an existing Article 120 provision?

• Issue 15: Should a new provision be added under Article 120 to specifically address coercive 

sexual relationships or those involving abuse of authority?

• Issue 16: Should sexual relationships between basic training instructors and trainees be treated as 

strict liability offenses under Article 120?

• Issue 17: As an alternative to further amending Article 120, should coercive sexual relationships 

currently charged under other articles of the UCMJ be added to DoD’s list of offenses that trigger 

sex offender registration?

ISSUES REQUIRING NO FURTHER STUDY AND NO ACTION

BIFURCATING ARTICLE 120 INTO SEPARATE PENETRATIVE AND CONTACT 

(NON-PENETRATIVE) OFFENSES

• The JPP believes that bifurcating different types of sex offenses under the UCMJ is not necessary 

at this time and would create further confusion. The JPP recommends against this action and does 

not believe that further evaluation of this issue is warranted.
16

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
17

Overview of the 

JPP’s Assessment I.

A. JPP RESPONSIBILITIES

In 2013, Congress directed that the Judicial Proceedings Panel (JPP) be established “to conduct an 

independent review and assessment of judicial proceedings conducted under the Uniform Code of 

Military Justice [UCMJ] involving adult sexual assault and related offenses” since 2012, when Article 

120 of the UCMJ was amended, “for the purpose of developing recommendations for improvements 

to such proceedings.”1 The Secretary of Defense appointed five members to the JPP in June 2014, 

including two members who previously served on the Response Systems to Adult Sexual Assault 

Crimes Panel (Response Systems Panel, or RSP).2

In the National Defense Authorization Acts (NDAAs) for Fiscal Year (FY) 2013, 2014, and 2015, 

Congress assigned numerous tasks to the JPP covering a wide array of topics (see Appendix A). In 

addition, the final report of the Response Systems Panel recommended that the JPP assess particular 

recommendations.3

 Congress required the JPP to submit its first report, including any proposals for 

legislative or administrative changes that the JPP considers appropriate, to the Secretary of Defense 

and to the Committees on Armed Services of the Senate and the House of Representatives within 180 

days after the Panel’s first meeting, which occurred on August 7, 2014.4 The JPP must also submit 

subsequent reports annually through September 2017, when the Panel concludes.

B. INITIAL TOPICS FOR ASSESSMENT

The JPP began its work by reviewing the punitive article in the UCMJ that is used to prosecute sexual 

assault crimes in the military—Article 120. Next, the JPP focused on victim privacy issues in sexual 

assault crimes, including a review of the rules that govern the use of evidence of other sexual conduct 

and the mental health communications and records of alleged victims in military judicial proceedings. 

It also reviewed the Special Victims’ Counsel (SVC) Program, which the Department of Defense (DoD) 

and the military Services first established in 2013. In addition, the JPP reviewed how the SVC programs 

assist sexual assault victims in obtaining information about their cases and exercising their rights under 

the UCMJ. 

1 National Defense Authorization Act for Fiscal Year 2013 [hereinafter FY13 NDAA], Pub. L. No. 112-239, § 576, 126 

Stat. 1632 (2013).

2 For a list and short biographies of the JPP members, see Appendix B.

3 Report of the Response Systems to Adult Sexual Assault Crimes Panel 48 (June 2014) [hereinafter RSP Report], available 

at http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/00_Report_Final_20140627.pdf; see also U.S. 

Dep’t of Def., Memorandum from the Secretary of Defense on Implementation of the Recommendations of the Response 

Systems to Adult Sexual Assault Crimes Panel (Dec. 15, 2014) [hereinafter DoD RSP Implementation Memo], available at 

http://jpp.whs.mil/Public/docs/03_Topic-Areas/01-General_Information/05_DoDResponse_

RSPRecommendations_20141215.pdf.

4 See FY13 NDAA, Pub. L. No. 112-239, § 576(c)(2), 126 Stat. 1632 (2013).
18

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

For its initial assessment, the JPP addressed the following assigned tasks and recommended issues:

1. Assess and make recommendations to improve the implementation of the reforms to the offenses 

relating to rape, sexual assault, and other sexual misconduct under Article 120 the UCMJ that 

were enacted by section 541 of the FY12 NDAA.5

2. Assess the likely consequences of amending the definition of rape and sexual assault under Article 

120 of the UCMJ to expressly cover a situation in which a person subject to the UCMJ commits 

a sexual act upon another person by abusing his or her position in the chain of command to gain 

access to or coerce the other person.6

3. Consider whether to recommend legislation that would either split sexual assault offenses under 

Article 120 into different articles that separate penetrative and contact offenses from other offenses 

or narrow the breadth of conduct currently criminalized under Article 120.7

4. Assess the implementation and effect of 10 U.S.C. § 1044e, as added by section 1716 of the FY14 

NDAA (requiring the military Services to designate legal counsel to provide legal assistance to 

victims of sex-related offenses), and make such recommendations for modifying section 1044e as 

the JPP considers appropriate.8

5. Review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in a proceeding under Article 32 of the UCMJ and any instances in which prior sexual 

conduct was determined to be inadmissible.9

6. Review and assess those instances in which evidence of prior sexual conduct of the alleged victim 

was introduced by the defense in a court-martial and what impact that evidence had on the case.10

7. Review and assess the impact of the use of a victim’s mental health records by the accused during 

the preliminary hearing conducted under Article 32 of the UCMJ and during court-martial 

proceedings, as compared to the use of similar records in civilian criminal legal proceedings.11

8. Review and clarify the extent of a victim’s right to access information that is relevant to the 

assertion of a particular right.12

5 FY13 NDAA, Pub. L. No. 112-239, § 576(d)(2)(A), 126 Stat. 1632 (2013).

6 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1731(b)(1)(A), 127 Stat. 672 (2013) 

[hereinafter FY14 NDAA].

7 RSP Report, supra note 3, at 48. 

8 FY14 NDAA, Pub. L. No. 113-66, § 1731(b)(1)(B), 127 Stat. 672 (2013).

9 FY13 NDAA, Pub. L. No. 112-239, § 576(d)(2)(E), 126 Stat. 1632 (2013).

10 FY13 NDAA, Pub. L. No. 112-239, § 576(d)(2)(F), 126 Stat. 1632 (2013).

11 National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 545(a)(1), 128 Stat. 3292 (2014) 

[hereinafter FY15 NDAA].

12 RSP Report, supra note 3, at 26 (Recommendation 45); see also DoD RSP Implementation Memo, supra note 3.
19

I. OVERVIEW OF THE JPP’S ASSESSMENT

C. METHODOLOGY OF REVIEW

To inform its assessments and gain a comprehensive understanding of the issues, the JPP gathered 

information by various methods. The JPP held seven days of public meetings, where it heard from 

more than 100 witnesses.13 The JPP also requested and reviewed information from the DoD, the 

military Services, and victim advocacy organizations, comprising thousands of pages of documents that 

included policies, proposals and their criticisms, procedures, statistics, records of legal proceedings, 

and surveys. In addition, the JPP reviewed publicly available information and conducted legal research 

and analysis of relevant topics, in accordance with the Federal Advisory Committee Act of 1972.14

A member of the JPP attended an Army SVC training course at the Judge Advocate General’s Legal 

Center and School in Charlottesville, Virginia. He provided a summary review of the course and his 

personal assessment to the other JPP members at the November public meeting of the JPP.

The information received and considered by the JPP is available on its website (http://jpp.whs.mil). The 

JPP wishes to express its gratitude to all presenters and to those who provided information and other 

assistance as part of this review and assessment.

D. RECENT AND ONGOING LEGISLATIVE AND POLICY INITIATIVES

For this review, the JPP sought to understand the practical consequences of legislative, executive, and 

policy changes and their effects on the issues that the Panel was tasked to assess. In addition to the 

amendments made to Article 120 in 2012, Congress and the President have also recently directed 

other substantial changes to laws and regulations. These revisions include changes to the rules for 

preliminary hearings and evidentiary rules, restrictions on court-martial jurisdiction for the most 

serious sexual assault offenses, mandates for secretarial review of disagreements between convening 

authorities and their staff judge advocates on referral decisions in sexual assault cases, institution 

of mandatory minimum sentences for the most serious sex offenses, and restrictions on clemency 

authority for convening authorities. 

Laws and policies regarding military judicial proceedings for sexual assault crimes continue to change, 

and many amendments and rules have just become effective or have not yet taken effect. Most recently, 

in the FY15 NDAA passed in December 2014, Congress enacted additional significant amendments 

to military judicial proceedings. Some of these amendments have or will substantially change issues, 

procedures, and rules that the JPP has considered in its meetings since August 2014. Where possible, 

the JPP reviewed these changes in this report, and it will continue to assess how recent modifications 

affect military judicial proceedings. 

In addition, DoD recently completed its initial review of the recommendations made by the RSP in 

its June 2014 report. On December 15, 2014, the Secretary of Defense announced full or in-part 

approval of 98 recommendations, disapproval of 1 recommendation, and referral or deferral of the 

remaining recommendations to working groups or panels for further study.15 The JPP will continue to 

monitor DoD’s and Congress’s response to the RSP’s recommendations and how the DoD reviews and 

implements them. 

13 For a list of witnesses who provided testimony or written comments at public meetings of the JPP, see Appendix D.

14 5 U.S.C. App. 2 (2012); see also 41 C.F.R. § 102-3.50(a).

15 U.S. Dep’t of Def., DoD RSP Implementation Memo, supra note 3.
20

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

The JPP is mindful that ongoing amendments and their implementation will likely affect its assessment 

over the course of its review. The JPP will continue to review the effects of changes to military judicial 

proceedings for sexual assault crimes and provide additional evaluation in future reports.
21

Article 120 of the Uniform Code 

of Military Justice II.

Article 120 is the basic statute used to prosecute sexual assault crimes under the Uniform Code of 

Military Justice. Article 120 has been substantially revised since the UCMJ was first adopted in 

1951. The most recent version, enacted by Congress in 2012, incorporates all sexual assault offenses 

under the UCMJ into Article 120. Consistent with its charter and specific tasks, the JPP examined the 

language, elements, and crimes encompassed by the statute in order to assess its effectiveness.

A. THE EVOLUTION OF ARTICLE 120

In 1950, Congress adopted the UCMJ, applying one criminal code to all the military Services.16

The UCMJ provided jurisdiction over all offenses committed by military Service members.17 The 

1951 version of the UCMJ adopted the now-antiquated common law definition of rape and rules of 

evidence, which “made it difficult to convict a service member accused of rape.”18

Article 120(a) of the 1951 version of the UCMJ prohibited a male from engaging in “an act of sexual 

intercourse with a female not his wife, by force and without her consent.”19 The military rules of 

evidence required the victim to resist in order to prove force.20 The defendant could offer evidence 

of the victim’s sexual history to demonstrate that she likely consented.21 The rules also permitted 

the accused to undermine the victim’s credibility by offering “evidence that the alleged victim failed 

to make a complaint of the offense within a reasonable time.”22 In addition, the rules required 

16 Manual for Courts-Martial, United States IX (1951 ed.) [hereinafter 1951 MCM]; see also Report of the Sex Crimes

and the UCMJ Subcommittee: A Report For the Joint Service Committee on Military Justice [hereinafter JSC Report] 21 

(Feb. 2005), available at http://www.defenselink.mil/dodgc/php/docs/subcommittee_reportMarkHarvey1-13-05.doc (citing 

The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775–1975, at 203 (1976)).

17 Major Mark D. Sameit, When a Convicted Rape Is Not Really Rape: The Past, Present, and Future Ability of Article 120 

Convictions to Withstand Legal and Factual Sufficiency Reviews, 216 Mil. L. Rev. 77, 84 (2013); JSC Report, supra note 

16, at 21 (citing The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775–1975, at 203 (1976)).

18 Sameit, supra note 17, at 85.

19 1951 MCM, pt. XXVII, ¶ 199a. The UCMJ combined the offenses of rape and carnal knowledge into two sections of 

Article 120. See JSC Report, supra note 16, at 21 (citing 1951 MCM ch. XXVII, ¶ 199a).

20 1951 MCM ch. XXVIII, ¶ 199a (“[I]f a woman fails to take such measures to frustrate the execution of a man’s design as 

she is able to take and are called for by the circumstances, the inference may be drawn that she did in fact consent.”).

21 JSC Report, supra note 16, at 22 (citing 1951 MCM ch. XXVII, ¶ 153b) (“For the purpose of impeaching the credibility 

of the alleged victim, evidence that the victim has an unchaste character is admissible, under the above conditions, in a 

prosecution for any sexual offense . . . even though consent is not an element of the offense.”). 

22 Id. (citing 1951 MCM ch. XXVII, ¶ 142c) (“In prosecutions for sexual offenses . . . evidence that the alleged victim of 

such an offense made complaint thereof within a short time thereafter is admissible.”). The rules of evidence adopted the 

common law “fresh complaint rule,” which was intended to corroborate the victim’s testimony and bolster the credibility 

of a sexual assault victim by demonstrating that he or she complained to someone within a reasonable time for sympathy, 

protection, or advice. See State v. Balles, 47 N.J. 331, 338 (1966). The rule created a paradox in sexual assault cases and 

proved more harmful than helpful to sexual assault complainants, because many sexual assault victims delay reporting 

the offense. See Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. Rev. 441 (1996). The fresh 

complaint theory is not recognized by most courts now, because it created a “promptness” requirement and expectation 

that “real” victims would report serious attacks. Studies now show that it is not inherently “natural” for the victim to 
22

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

corroboration in sexual offense cases if the victim’s testimony was “self-contradictory, uncertain, or 

improbable.”23

The 1969 edition of the Manual for Courts-Martial (MCM) only slightly altered the rape provision.24

Victims still had to take “measures of resistance” and make their lack of consent “reasonably 

manifest.”25 Otherwise, consent could be inferred from the lack of resistance.26 In addition, the Manual

provided that an accused could be found guilty of rape when a victim was of “unsound mind” or was 

rendered incapable of providing consent because she was unconscious.27 However, an act was not 

considered rape if the accused used fraud to obtain consent.28

Simultaneously, women’s rights advocates in the civilian sector were “push[ing] hard to change the 

requirements for corroboration, resistance, the fresh complaint rule, and to protect the victims from 

having their sexual histories publicly exposed at trial” in state and federal courts across the country.29

By the 1970s, only fifteen states required corroboration.30 In 1978, Congress adopted the Privacy 

Protection for Rape Victims Act, which prevented the defense from offering a victim’s sexual history in 

federal cases, except in limited circumstances.31

In 1980, the President issued an Executive Order promulgating the Military Rules of Evidence, which 

were intended to mirror the Federal Rules of Evidence and incorporate the reforms already undertaken 

in the civilian sector.32 The new Military Rules of Evidence and the revision to the UCMJ in 1984 

provided greater protections to victims of rape by eliminating the expectation that a victim file a fresh 

complaint and that a victim’s statement be corroborated.33 Modeled after Federal Rule of Evidence 

412, Military Rule of Evidence (M.R.E.) 412 established a rape shield provision that generally barred a 

victim’s prior sexual history from being admitted as evidence of propensity to engage in sex.34

confide in someone or to disclose that he or she was sexually assaulted immediately following the offense. See Andrea R. 

Barter, “SJC Revisits and Revises the Fresh Complaint Rule,” Law. J. (Mass. Bar Ass’n Nov. 2005), available at 

http://www.massbar.org/publications/lawyers-journal/2005/november/sjc-revisits-and-revises-the.

23 JSC Report, supra note 16, at 22 (citing 1951 MCM ch. XXVII, ¶ 153a) (“[A] conviction cannot be based upon the 

uncorroborated testimony of an alleged victim in a trial for a sexual offense . . . if such testimony is self-contradictory, 

uncertain, or improbable.”).

24 Manual for Courts-Martial, United States ch. XXVIII, ¶ 199a (1969 ed.) [hereinafter 1969 MCM]. 

25 1969 MCM ch. XXVIII, ¶ 199a.

26 Id.

27 Id.

28 Id.

29 Sameit, supra note 17, at 86.

30 Id.

31 Pub. L. No. 95-540, 92 Stat. 2046 (1978) (codified as Fed. R. Evid. 412). Those exceptions were for (1) evidence that 

“is constitutionally required to be admitted”; (2) evidence of “past sexual behavior with persons other than the accused, 

offered by the accused upon the issue of whether the accused was or was not . . . the source of semen or injury”; or (3) 

evidence of “past sexual behavior with the accused . . . offered by the accused upon the issue of whether the alleged victim 

consented to the sexual behavior” at issue. Id. at § 2. 

32 Exec. Order No. 12,198, 45 Fed. Reg. 16,932 (Mar. 14, 1980).

33 JSC Report, supra note 16, at 25. 

34 Id. In 1984, the MCM was further revised: the discussion section of the 1951 MCM, ch. XXVII, ¶ 199a, which questioned 

the credibility of rape victims and required corroboration and a “fresh complaint,” was deleted entirely. After the 1984 

revision, Congress amended Article 120 two additional times, in 1992 and 1996: the changes struck gender-specific 
23

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

In May 2001, the National Institute of Military Justice (NIMJ) issued the Report of the Commission 

on the 50th Anniversary of the Uniform Code of Military Justice, also known as the Cox Report, 

which recommended that the rape and sodomy provisions be repealed and replaced with “a 

comprehensive Criminal Sexual Conduct Article, such as is found in the Model Penal Code or Title 18 

of the United States Code.”35

Three years later, Congress mandated that the Secretary of Defense review the UCMJ and MCM to 

determine what changes would be required “to improve the ability of the military justice system to 

address issues relating to sexual assault” and to conform the UCMJ and the MCM “more closely to 

other Federal laws and regulations that address such issues.”36 A subcommittee to the Joint Service 

Committee (JSC) was formed to review sexual offenses under the UCMJ and MCM. 

The JSC subcommittee issued its report in 2005, detailing six options that ranged from no change to 

major revisions.37 The JSC subcommittee disagreed with the Cox Report’s recommendation for change 

and unanimously concluded that sexual misconduct in the military could be effectively prosecuted 

under the existing law.38 The subcommittee also found that any “rationale for significant change 

[would be] outweighed by the confusion and disruption that such change would cause,” and that 

any changes to the UCMJ or other regulations would be unlikely to result in any significant increase 

in prosecutions of sexual offenses.39 However, a majority of the subcommittee determined that if 

changes were made to Article 120, the preferred option was the one that “best takes into account 

unique military requirements, and at the same time . . . promotes good order and discipline, enhances 

the military justice system for service members by creating clear prohibitions, and distinguishes 

between different degrees of criminal sexual misconduct, providing greater clarity to the law of sexual 

assaults.”40

In July 2005, the Court of Appeals for the Armed Forces (CAAF) called Article 120 “antiquated in its 

approach to sexual offenses” and found that it did not “reflect the more recent trend for rape statutes 

to recognize gradations in the offense based on context.”41 The Court continued: “Because Article 120 

is dated, its elements may not easily fit the range of circumstances now generally recognized as ‘rape,’ 

including date rape, acquaintance rape, statutory rape, as well as stranger-on-stranger rape. As a result, 

language and added being mistaken about the facts as an affirmative defense for those accused of carnal knowledge—that 

is, sexual intercourse, under circumstances not amounting to rape, with a person who is not the accused’s spouse and is 

under age 16. JSC Report, supra note 16, at 27.

35 Major Jennifer Knies, Two Steps Forward, One Step Back: Why the New UCMJ’s Rape Law Missed the Mark, and 

How an Affirmative Consent Statute Will Put It Back on Target, Army Law., Aug. 2007, at 1, 17 (citing Report of the

Commission on the 50th Anniversary of the Uniform Code of Military Justice (May 2001)).

36 See National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 571, 118 Stat. 1811 (2004).

37 JSC Report, supra note 16, at 3–5.

38 Id. at 15 (rebutting Cox Commission’s recommendation and listing “five reasons [that] militate against change”).

39 Id. at 1; see also Brigadier General (Ret.) Jack Nevin and Lieutenant Joshua R. Lorenz, Neither a Model of Clarity Nor a 

Model Statute: An Analysis of the History, Challenges, and Suggested Changes to the “New” Article 120, 67 A.F. L. Rev.

269, 278 (2011) (citing JSC Report, supra note 16, at 2).

40 JSC Report, supra note 16, at 208; see also Transcript of JPP Public Meeting 221 (Aug. 7, 2014) (testimony of Mr. Dwight 

Sullivan, Office of the General Counsel, Department of Defense); id. at 271 (testimony of Col Gary Jackson, U.S. Air 

Force, Staff Judge Advocate, Global Strike Command).

41 United States v. Leak, 61 M.J. 234, 246 (C.A.A.F. 2005).
24

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

the traditional military rape elements have been applied in contexts for which the elements were not 

initially contemplated.”42

Congress completely overhauled Article 120 in 2007,43 creating fourteen separate offenses for various 

types of sexual crimes.44 The new statute bifurcated the traditional crime of rape into two separate 

offenses (rape and aggravated sexual assault) and removed “without consent” from the definition.45

The new Article 120 also required the accused to raise consent and mistake of fact as to consent as 

affirmative defenses to certain offenses and expressly required the accused to support those defenses 

by a preponderance of the evidence.46 If the accused met this initial burden of proof, the burden then 

shifted to the prosecution to disprove beyond a reasonable doubt the existence of consent or mistake of 

fact as to consent.47

In 2011, CAAF decided United States v. Prather,

48 a case that involved an aggravated sexual assault 

offense against a person who was substantially incapacitated. CAAF considered the requirement in the 

2007 version of Article 120 that an accused raise and prove consent and mistake of fact as to consent 

as affirmative defenses to the charge. CAAF concluded that the statute unconstitutionally shifted the 

burden to the accused by requiring the accused to prove that the victim had the capacity to consent 

by a preponderance of the evidence.49 The Court further concluded that the statute created a legal 

impossibility by requiring the prosecution to disprove beyond a reasonable doubt the existence of 

consent or mistake of fact as to consent once the accused met his or her initial burden to prove the 

same by a preponderance of the evidence.50

B. THE 2012 REFORMS TO ARTICLE 120

Congress again substantially revised Article 120 in the National Defense Authorization Act for Fiscal 

Year 2012.51 Among many modifications, the new statute removed the shift of the burden of proof, 

reduced the total number of sex offenses from fourteen to ten, and changed a number of the names 

and definitions of the offenses.52 The JPP’s descriptions of specific modifications to Article 120 are 

addressed below. 

42 Id.

43 In amending the statute, Congress did, however, follow the JSC subcommittee majority’s recommendation for how to 

restructure the statute if change was made. Among other recommendations, the subcommittee’s preferred option had 

proposed to add several other sexual misconduct provisions that were punishable then under Article 134 of the UCMJ, 

provide more specific notice of conduct that was unlawful, and explain when age, consent, marriage, and mistake of fact 

are applicable as affirmative defenses. JSC Report, supra note 16, at 4-5.

44 Manual for Courts-Martial, United States pt. IV, ¶ 45 (2008 ed.) [hereinafter 2008 MCM].

45 2008 MCM pt. IV, ¶ 45; see also Nevin and Lorenz, supra note 39, at 280.

46 2008 MCM pt. IV, ¶ 45; see also Nevin and Lorenz, supra note 39, at 280; 2008 MCM pt. IV, ¶ 45(t)(14)–(16). 

47 Id.

48 United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011) (ruling that shifting the burden of proof to the defense to raise 

consent and mistake of fact as to consent as affirmative defenses to certain offenses was unconstitutional).

49 Id. at 344; see also United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).

50 Prather, 69 M.J. at 344-45.

51 National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 582, 125 Stat. 1298 (2011).

52 Colonel R. Peter Masterton, Colonel David Robertson, and Colonel Wendy P. Daknis, Annual Review of Developments in 

Instructions, Army Law., Dec. 2013, at 4, 7.
25

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

1. Delayed Implementation Guidance

Congress required changes to Article 120, which took effect on June 28, 2012. According to Articles 

36 and 56 of the UCMJ, the President prescribes pre-and post-trial rules for courts-martial, further 

defines elements of crimes, and sets maximum punishments for offenses, after proposals undergo 

interagency review.

53 Some executive guidance to implement the 2012 version of Article 120 still 

remains unfinished today, more than two and a half years after the statute took effect.54

On May 15, 2013, almost one year after the new statute’s effective date, the President issued Executive 

Order 13643, which established maximum punishments for Article 120 offenses.55 An executive order 

addressing the elements and specifications for Article 120 is currently undergoing interagency review, 

and it has yet to be signed by the President.56 In the interim, the trial judiciaries for the military Services 

published elements, model specifications, and legal instructions in the Military Judges Benchbook.

57

This interim guidance applies at all courts-martial for Article 120 offenses committed on or after June 

28, 2012.58

The delay—which remains partially unresolved—in establishing implementation guidance for the 2012 

statutory provisions of Article 120 raises significant concerns. Implementation guidance is essential 

for military justice practitioners to effectively investigate, prosecute, and defend sexual assault cases. 

Without such guidance, they lack critical information to accurately and effectively implement the 

revisions to Article 120. In the absence of standardized guidance established by executive order, the JPP 

heard that the trial judiciaries and organizations within the military Services have created their own 

guidance, procedures, and policies for the statute. Ad hoc guidance is not an appropriate substitute for 

formalized guidance established via executive order, because it may or may not comport with the intent 

or requirement of the statute or with the President’s guidance for its implementation and application.

The review process for issuing Article 120 guidance appears to have involved extensive delays both 

within and outside DoD, which have created serious obstacles for practitioners who are litigating 

sexual assault offenses. The JPP members believe that the process for establishing implementation 

guidance is moving too slowly and should be streamlined.

53 In Articles 36 and 56 of the UCMJ, Congress authorized the President to prescribe pre- and post-trial rules for courtsmartial, further define elements of crimes, and set maximum punishments for offenses. This guidance is accomplished 

via executive order and inserted into the Manual for Courts-Martial as the Military Rules of Evidence, Rules for CourtsMartial, and explanatory information for offenses and rules. Executive orders are used to define terminology within 

statutory offenses and set forth model specifications used by prosecutors when charging offenses. Establishing common 

guidance and procedures ensures efficient and consistent processing of military justice cases. Guidance also serves to 

highlight or clarify any underlying drafting or congressional intent for requirements. See Manual for Courts-Martial, 

United States (2012 ed.) [hereinafter 2012 MCM].

54 On January 6, 2006, Congress passed amendments to Article 120 to take effect on October 1, 2007. This delay allowed 

the executive branch 21 months to enact implementing guidance for the new statute. On September 28, 2007, the 

President issued Executive Order 13447, providing definitions and guidance for the new version of Article 120. Guidance 

from the EO was incorporated into the new version of the UCMJ that was published a few days later on October 1, 2007. 

See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3134 (2006); Exec. Order 

No. 13,447, 72 Fed Reg. 56,179 (Oct. 2, 2007); 2008 MCM pt. IV, ¶ 45.

55 Exec. Order No. 13,643, 78 Fed. Reg. 29,559, 29,606 (May 21, 2013).

56 For an overview of the executive order implementation process, see Transcript of JPP Public Meeting 224-26, 244–45 

(Sept. 19, 2014) (testimony of Col Michael Lewis, U.S. Air Force, Chief, Military Justice Division).

57 See, e.g., U.S. Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook (Sept. 10, 2014) [hereinafter 

Military Judges’ Benchbook], available at http://www.apd.army.mil/pdffiles/p27_9.pdf.

58 Id. at 474.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

2. Initial JPP Assessment of the 2012 Version of Article 120 

At its August, September, and December 2014 public meetings, the JPP heard testimony and received 

information about the evolution and current state of Article 120. National experts in rape and sexual 

assault law, military law experts from the military Services, prosecution and defense practitioners, 

members of Congress, and sexual assault victims provided information and perspectives for the JPP’s 

consideration. The JPP focused its review on assessing the current state of Article 120, identifying 

issues with its language and implementation, and assessing whether changes should be made to the law 

or its implementing guidance. 

The JPP identified nine issues related to the definitions of terms under the 2012 version of Article 

120 and two issues related to the elements and enumerated offenses included under Article 120. The 

following two sections explain each issue and describe improvements suggested by the presenters. The 

JPP’s current assessments are also provided; however, the Panel believes that additional consideration 

of these complex issues is necessary and recommends that a subcommittee should continue to examine 

these issues and provide recommendations. 

3. Issues Related to Article 120 Definitions

a. Is the current definition of “consent” unclear or ambiguous? 

Under the current version of Article 120, consent is defined as follows:

(A) The term ‘consent’ means a freely given agreement to the conduct at issue by a competent 

person. An expression of lack of consent through words or conduct means there is no 

consent. Lack of verbal or physical resistance or submission resulting from the use of force, 

threat of force, or placing another person in fear does not constitute consent. A current 

or previous dating or social or sexual relationship by itself or the manner of dress of the 

person involved with the accused in the conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent 

to force likely to cause death or grievous bodily harm . . . .

(C) Lack of consent may be inferred based on the circumstances of the offense. . . .59

While lack of consent was not specifically included as an element of rape or sexual assault in the 

current statute, the question of consent remains relevant to issues such as force and capacity, as well as 

to whether the government has proven all of the elements of the offense beyond a reasonable doubt.60

Some witnesses testified to the JPP that the current definition is inconsistent and confusing. According 

to Professor Stephen J. Schulhofer of New York University School of Law, it mixes three of the four 

definitions of consent used throughout American jurisdictions.61 He believes the statute is awkwardly 

constructed and the consent language is vague and contradictory. He suggested the JPP propose a fresh 

59 2012 MCM pt. IV, ¶ 45(g)(8). 

60 Military Judges’ Benchbook, supra note 57, ch. 3-45-13, Note 8.

61 Letter from Professor Stephen J. Schulhofer, NYU School of Law, American Law Institute, to JPP [hereinafter Schulhofer 

Letter] 3–4 (Aug. 8, 2014).
27

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

start to the sexual assault statute rather than attempt to piecemeal an amendment.62 In contrast, other 

witnesses, including trial practitioners, said that the definition is clear, unambiguous, and should not be 

altered.63

It appears from the information presented to the JPP that many trial practitioners and criminal law 

experts find it difficult to interpret the statute’s definition of consent. The JPP’s own deliberations 

highlighted the ambiguity of the statute, which seems to require something akin to affirmative 

consent (i.e., “freely given agreement”) while also providing that lack of consent may be inferred 

from the circumstances. The JPP recognizes that any modifications to definitions of consent could 

have a significant impact on the remainder of the statute. As the Judge Advocate General of the Navy, 

Vice Admiral Nanette M. DeRenzi, told the JPP, “While we should strive for clarity in the Code, 

the military justice system is comprised of interconnected rules and statutes. Changes to any other 

part of the system should be reviewed carefully and understood fully to avoid potential unintended 

consequences.”64 Therefore, before making any determinations or reaching any conclusions, the JPP 

recommends that a subcommittee consider this issue. 

b. Should the statute define defenses relying on the victim’s consent or the accused’s mistake of fact 

as to consent in sexual assault cases? 

The 2007 version of Article 120 eliminated consent as an element the prosecution had to prove in sex 

crimes, but it added affirmative defenses that an accused could assert, averring that the alleged victim 

consented to the act (defense of “consent”) or that the accused honestly and reasonably was mistaken 

as to certain facts regarding the victim’s consent (defense of “mistake of fact as to consent”).65 CAAF 

found that the defenses in the 2007 statute unconstitutionally shifted the burden to the accused, and 

the 2012 revision to Article 120 removed consent and mistake of fact as to consent as affirmative 

defenses.66 Instead, the statute now provides for “any applicable defenses” available under the UCMJ.67

Because mistake of fact is a recognized defense under Rule for Courts-Martial 916(j), it arguably 

applies to cases under Article 120.68 However, “consent” is not available as a general defense for any 

crimes under the UCMJ, including sex crimes.69

Several witnesses told the JPP that the availability of consent and mistake of fact as to consent under 

the current statute is unclear, because they were explicitly included in the 2007 version of Article 120 

but not in the 2012 version.70 Other witnesses said that the mistake of fact defense still clearly applied, 

62 Id. at 1–4.

63 See Transcript of JPP Public Meeting 21 (Sept. 19, 2014) (testimony of Ms. Teresa Scalzo, Highly Qualified Expert, U.S. 

Navy Trial Counsel Assistance Program); see also id. at 65 (testimony of LtCol Chris Thielemann, U.S. Marine Corps, 

Regional Trial Counsel). 

64 See Transcript of JPP Public Meeting 236 (Dec. 12, 2014) (testimony of VADM Nanette M. DeRenzi, Judge Advocate 

General, U.S. Navy). 

65 2008 MCM pt. IV, ¶ 45(r).

66 Jim Clark, Analysis of Crimes and Defenses 2012 UCMJ Article 120, Effective 28 June 2012, Emerging Issues 7 (2012), 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140807/07_Art120_UCMJ_Crimes_

Defenses_Analysis_Clark_2012.pdf.

67 2012 MCM pt. IV, ¶ 45(f). 

68 Clark, supra note 66, at 7, 9. 

69 Clark, supra note 66.

70 Transcript of JPP Public Meeting 104 (Sept. 19, 2014) (testimony of Major Frank Kostik, U.S. Army, Senior Defense 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

but contended that it should be reintroduced into the statute to expressly limit its applicability and 

make clear any limitations on its scope.71 In a recent article on the 2012 amendment to Article 120, 

Professor Lisa Schenck further explained why the mistake of fact defense should be reintroduced into 

the statute: 

A statutory definition provides transparency to victims and non-lawyers who cannot 

assess the scope of this defense, which is otherwise buried in case law. Moreover, a 

statutory definition increases stability since it is less subject to judicial interpretation 

and reversal of convictions when a trial judge’s instructions do not comport with an 

appellate body’s views. Limiting judicial discretion restricts the defense’s scope and thus 

ensures a more victim-oriented defense.72

Under Article 120(a)(1), a rape occurs when an accused commits as a sexual act upon another using 

unlawful force.73 Article 120(g)(6) goes on to define unlawful force as “an act of force done without 

legal justification or excuse.”74 The Military Judges Benchbook, consistent with the Court of Appeals 

for the Armed Forces decision in United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), currently 

instructs courts-martial panels that under the 2012 version of the rape statute, 

All of the evidence concerning consent to the sexual conduct is relevant to whether 

the prosecution has proven the elements of the offense beyond a reasonable doubt. 

Stated another way, evidence that the alleged victim consented to the sexual act, either 

alone or in conjunction with the other evidence in this case, may cause you to have a 

reasonable doubt as to whether the accused used unlawful force . . . .75

The JPP heard testimony that this instruction misapplies the law and Article 120 instructions on 

consent as an affirmative defense.76 Two highly qualified experts for the Army’s Trial Defense Service 

told the JPP that by using the language “legal justification or excuse,” Congress intended to establish 

consent as a defense within the express terms of the statute.77 They contended that consent is a legal 

justification or excuse and that court-martial panels should be so instructed.78 Both said that an 

Counsel); see also Email from Col Gary M. Jackson, U.S. Air Force, to the JPP (Aug. 11, 2014) [hereinafter Jackson 

Email], available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140807/18_201408_Jackson_

Art120_UCMJ_Comments_Redacted.pdf.

71 Professor Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military 

Justice (UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 Ohio St. J. Crim. L. 439, 463 (2014).

72 Id.

73 2012 MCM pt. IV, ¶ 45(a)(1). 

74 2012 MCM pt. IV, ¶ 45(a)(1), (g)(6).

75 Military Judges’ Benchbook, supra note 57, at para. 3-45-13, Note 8.

76 Transcript of JPP Public Meeting 14 (Sept. 19, 2014) (testimony of Mr. Edward J. O’Brien, former Highly Qualified 

Expert, U.S. Army Trial Defense Services).

77 Id. at 34 (testimony of Mr. Edward J. O’Brien, Highly Qualified Expert, U.S. Army Trial Defense Services); see also Ronald 

W. White, “The Redemptive Role of ‘Justification or Excuse’ in Article 120(a) (2011): We Don’t Need a New Statute; We 

Need New Implementation” 2 (unnumbered) (undated; provided to JPP Sept. 12, 2014), available at http://jpp.whs.mil/

Public/docs/03_Topic-Areas/02-Article_120/20140919/26_TheRedemptiveRole_White.pdf.

78 Written Statement of Mr. Edward J. O’Brien to the JPP, “The Article 120 Implementation Challenge: Avoiding 

Unintended Consequences and Unjust Outcomes” (Sept. 19, 2014); White, supra note 77, at 10. 
29

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

executive order or a modification to the Benchbook, rather than an amendment to the statute, would 

appropriately remedy this issue.79

During deliberations, members of the JPP agreed that the statute’s lack of clarity in its definition of 

consent contributes to confusion about the role of consent in determining knowledge or intent in 

Article 120 offenses. The JPP also agreed that consent and mistake of fact as to consent are important 

defenses and that the statute should clearly indicate what constitutes a mistake of fact and whether the 

defense applies to rape and sexual assault offenses. The JPP recommends that a subcommittee further 

evaluate these issues and provide recommendations. 

c. Should the statute define “incapable of consenting”?

The 2007 revision to Article 120 made a sexual act or contact criminal, if the victim was “substantially 

incapacitated” or “substantially incapable.” These standards focused on the victim rather than 

the offender—specifically, on the victim’s ability to appraise the nature of the sexual act, decline 

to participate in the sexual act, or communicate unwillingness to engage in the sexual act.80 But 

“substantially incapacitated” proved to be difficult for prosecutors to prove beyond a reasonable doubt 

in court. The statutory language required jury panels to concentrate on the mental state of the victim, 

paying little attention to the knowledge of the accused.81

The 2012 statute removed the concept of substantial incapacitation and replaced it with a “knew or 

should have known” standard that shifted the focus from the victim to the offender and whether he 

or she knew or should have known that the “other person is incapable of consenting to the sexual act 

due to (A) impairment by any drug, intoxicant, or other similar substances . . . or (B) a mental disease 

or defect . . . .”82 While its inclusion of the language “know or reasonably should know” injects an 

objective prong into the analysis, Congress did not provide additional definitions for “incapable of 

consenting” and “impairment.”83

Numerous witnesses told the JPP that the interpretation of “incapable of consenting” and 

“impairment” under the 2012 version of Article 120 raised just as many problems as had language 

in the 2007 version of the statute. Noting that the statute includes no definitions or further guidance, 

witnesses provided anecdotes of military judges using their “common sense and the knowledge of 

human nature to the ways of the world” to determine the meaning of “incapable of consent.”84 They 

79 See Transcript of JPP Public Meeting 25 (Sept. 19. 2014) (testimony of Mr. Ronald W. White, former Highly Qualified 

Expert, U.S. Army Trial Defense Services); id. at 36–37 (testimony of Mr. Edward J. O’Brien, Highly Qualified Expert, 

U.S. Army Trial Defense Services).

80 Clark, supra note 66, at 5.

81 Id.

82 2012 MCM pt. IV, ¶ 45(b)(3). 

83 Transcript of JPP Public Meeting 59 (Sept. 19, 2014) (testimony of LTC Alexander N. Pickands, U.S. Army, Chief, Trial 

Counsel Assistance Program).

84 Transcript of JPP Public Meeting 11 (Sept. 19, 2014) (testimony of Ms. Teresa Scalzo, Highly Qualified Expert, U.S. Navy 

Trial Counsel Assistance Program); id. at 64 (testimony of LtCol Christopher J. Thielemann, U.S. Marine Corps, Regional 

Trial Counsel); id. at 104 (testimony of MAJ Frank E. Kostik, Jr., U.S. Army, Senior Defense Counsel); id. at 71 (testimony 

of Maj Mark F. Rosenow, U.S. Air Force, Chief of Policy and Coordination, Special Victims Unit); see also Schulhofer 

Letter, supra note 61, at 2.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

recommended amending the statute to provide either a definition or a statutory test to determine when 

an individual is incapable of consent.85

During deliberations, the JPP determined that additional review was required. In particular, it noted 

the interrelationship between incapacity and consent and the importance of providing clear definitions. 

Because sexual assault prevention training for all Service members uses language from Article 120, 

vague terms may leave them confused about standards of behavior and expectations. The JPP believes 

that a subcommittee should further assess the definitions and provide recommendations.

d. Is the definition concerning the accused’s “administration of a drug or intoxicant” overbroad?

Under the current statute, an accused is guilty of rape if he or she commits a sexual act upon another 

person by 

administering to that other person by force or threat of force, or without the 

knowledge or consent of that person, a drug, intoxicant, or other similar substance and 

thereby substantially impairing the ability of that other person to appraise or control 

conduct.86

As written, the statute does not require the substance to be administered with the specific intent to 

impair an individual’s capacity. 

Professor Schulhofer asserted to the JPP that the statute should be narrowly tailored to criminalize only 

the intentional administration of an intoxicant for the purpose of committing a sexual act, not actions 

that are accidental or negligent.87 No military practitioners raised this issue with the JPP or mentioned 

any problems at the trial level.88

During deliberations, JPP members noted that only one presenter highlighted the issue of intent with 

regard to the administration of a drug or intoxicant.89 It was not clear to the JPP if a conviction would 

be possible in cases in which the substance was administered by accident or without proof of intent. 

Before drawing any conclusions with regard to the breadth of this provision in the statute and whether 

the issue necessitates consideration of statutory changes, the JPP recommends that a subcommittee 

hear from military justice practitioners about how cases alleging accidental administration have been 

addressed or litigated.

e. Does the definition of “bodily harm” require clarification? 

The 2012 version of Article 120 expanded the offense of sexual assault to include sexual acts by 

causing bodily harm.90 Within the offense of sexual assault based on bodily harm (as well as abusive 

85 Schulhofer Letter, supra note 61, at 2; see also Transcript of JPP Public Meeting 75 (Sept. 19, 2014) (testimony of LTC 

Alexander N. Pickands, U.S. Army, Chief, Trial Counsel Assistance Program); id. at 12 (testimony of Ms. Teresa Scalzo, 

Highly Qualified Expert, U.S. Navy Trial Counsel Assistance Program); id. at 65 (testimony of LtCol Christopher J. 

Thielemann, U.S. Marine Corps, Regional Trial Counsel). 

86 2012 MCM pt. IV, ¶ 45(a)(5).

87 Schulhofer Letter, supra note 61, at 2.

88 Transcript of JPP Public Meeting 21–22 (Oct. 10, 2014).

89 Id.

90 2012 MCM pt. IV, ¶ 45(b)(1)(B). 
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II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

sexual contact based on bodily harm), consent is not an independent element. However, under the 

current statute, bodily harm is defined as “any offensive touching of another, however slight, including 

any nonconsensual sexual act or nonconsensual sexual contact.”91 Thus, in cases in which the bodily 

harm alleged is the sexual act (or contact) itself, lack of consent can effectively become an element of 

the offense.92

The issue raised to the JPP is whether sexual assault based on bodily harm under Article 120(b)(1)

(B) includes only offenses that involved bodily harm in addition to the sexual act or if the statute 

also includes offenses that involved only a nonconsensual sexual act.93 According to several current 

practitioners, the definition of bodily harm, as well as the statutory scheme surrounding the bodily 

harm offense, is ambiguous and created confusion at trial.94 One solution recommended to the JPP was 

to amend the definition of bodily harm to include “physical pain, illness, or any impairment” while 

establishing a separate and distinct offense under Article 120 for sexual intercourse without consent.95

However, another witness argued the bodily harm definition should not be altered and that Congress’s 

intention to include sex without consent as an offense was clear.96

During deliberations, the JPP members found the definition of bodily harm confusing. The JPP believes 

that a subcommittee should further review the definition and provide recommendations.

f. Is the definition of “threatening wrongful action” ambiguous or too narrow?

Under the 2012 version of Article 120, a person can be found guilty of a sexual assault if that person 

commits a sexual act or contact upon another person by “threatening or placing that other person in 

fear.” The Manual for Courts-Martial defines threatening or placing that other person in fear as

a communication or action that is of sufficient consequence to cause a reasonable fear 

that non-compliance will result in the victim or another person being subjected to the 

wrongful action contemplated by the communication or action.97

The Manual does not define the term “wrongful action” and provides no guidance on whether 

Congress intended this provision to cover the inherently coercive senior-subordinate relationships 

unique to the military.98 Significantly, the 2007 version of Article 120 specified that persons could be 

placed in fear “through the use or abuse of military position, rank, or authority, to affect or threaten to 

affect, either positively or negatively, the military career of another.”99

91 2012 MCM pt. IV, ¶ 45(g)(3) (emphasis added).

92 Masterton, Robertson, and Daknis, supra note 52, at 8 (citing 2012 MCM pt. IV, ¶ 45(g)(3)).

93 Transcript of JPP Public Meeting 122–23 (Sept. 19, 2014) (testimony of Lt Col Julie L. Pitvorec, U.S. Air Force, Chief, 

Senior Defense Counsel).

94 See Id.; see also Schulhofer Letter, supra note 61, at 3.

95 Schulhofer Letter, supra note 61, at 3. 

96 Transcript of JPP Public Meeting 11 (Sept. 19, 2014) (testimony of Ms. Teresa Scalzo, Highly Qualified Expert, U.S. Navy 

Trial Counsel Assistance Program). 

97 2012 MCM pt. IV, ¶ 45(g)(7). 

98 Id.

99 2008 MCM pt. IV, ¶ 45(t)(7)(B)(ii)(III).
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

Some witnesses contended that this provision was too narrow or was ambiguous, because it did 

not encompass sexual acts or contact that is induced through promises of career advancement or 

undeserved favorable treatment.100 Others testified to the contrary that the current language was 

adequate to charge sexual assaults resulting from inherently coercive relationships and that the “threat 

of . . . wrongful action” language was appropriately broad and could encompass senior-subordinate 

relationships.101

During deliberations, the JPP agreed that additional review was necessary to determine whether the 

current statutory language is intended to cover relationships unique to the military and, if so, whether 

the statute is sufficiently broad. The JPP recommends that a subcommittee further evaluate the statute 

and provide recommendations.

g. How should “fear” be defined to acknowledge both subjective and objective factors? 

Because the definition of “threatening or placing that other person in fear” hinges on “caus[ing] a 

reasonable fear,” it is clear that for offenses under Article 120 involving threats or placing a victim in 

fear, an objective “reasonable person” standard must be met rather than a subjective standard that 

takes into account the victim’s actual mind-set.102 The JPP received testimony that the “reasonable” test 

should be amended to recognize a victim’s actual fears.103

During deliberations, the JPP agreed that additional review was necessary to determine whether 

a different test should replace the current objective test and to evaluate the most effective and 

efficient means of implementing such a change. In addition, as discussed in section C.2.b below, the 

definition of “threatening or placing that other person in fear” in the 2012 version of the statute 

was substantially narrowed from the definition used in the 2007 version. This raises questions as to 

whether the current version sufficiently criminalizes certain types of sexual misconduct, particularly 

those that involve abuse of authority. The JPP recommends that a subcommittee conduct this 

evaluation and provide recommendations. 

h. Is the definition of “force” too narrow?

Under the 2007 version of the Article 120 statute, force was defined as an “action to compel 

submission of another or to overcome or prevent another’s resistance” by use or suggestion of a 

dangerous weapon, or by “physical violence, strength, power, or restraint . . . sufficient that the other 

person could not avoid or escape the sexual conduct.”104 According to one expert, this phrasing 

required the victim to resist the assault.105

100 Schulhofer Letter, supra note 61, at 3; see also Transcript of JPP Public Meeting 58 (Sept. 19, 2014) (testimony of LTC 

Alexander N. Pickands, U.S. Army, Chief, Trial Counsel Assistance Program).

101 See Transcript of JPP Public Meeting 215–16 (Sept. 19, 2014) (testimony of CAPT Robert J. Crow, U.S. Navy, Director, 

Criminal Law Division).

102 2012 MCM pt. IV, ¶ 45(a)(3).

103 Schenck, supra note 71, at 452; Jackson Email, supra note 40. 

104 2008 MCM pt. IV, ¶ 45(t)(5) (emphasis added). 

105 Clark, supra note 66, at 2.
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II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

The 2012 revision to Article 120 amended the definition of force to focus objectively on the offender’s 

conduct rather than subjectively on the victim’s behavior.106 Force is now defined as “(A) the use of 

a weapon; (B) the use of such physical strength or violence sufficient to overcome, restrain, or injure 

a person; or (C) inflicting physical harm sufficient to coerce or compel submission by the victim.”107 

Subsection (B) measures the offender’s use of physical strength or violence by an objective reasonable 

person standard rather than by the actions of the particular victim in a case.108 While subsection (C) 

does look at the particular victim, it does not place the burden of resistance on that person.109

The JPP considered input from two witnesses who advocated for a broader definition of force.110

Professor Schenck noted that the 2012 version of Article 120 restricts “force” to a situation in which a 

weapon is used, rather than simply displayed or suggested.111 The degree of force to compel the victim’s 

submission is more subjective than in the 2007 version and places less emphasis on whether the victim 

could escape the assault.112 Professor Schenck therefore recommended that Article 120(g)(5) should 

include “the use, the display, or the suggestion of the use of a weapon.”113 Professor Schulhofer argued 

that there should be two categories of forcible rape—one encompassing unlawful force applied against 

a person; the other, escalated use of force that could cause death or grievous bodily harm.114

During deliberations, the JPP decided that additional review was warranted to determine if the 

definition of force should be broadened.115 The JPP recommends that a subcommittee conduct further 

evaluation and provide recommendations. 

i. Are the definitions of “sexual act” and “sexual contact” too narrow, or are they overly broad? 

The JPP heard testimony that the statute’s definition of sexual act may be overbroad. The current 

Article 120 defines a “sexual act” as follows: 

(a) contact between the penis and the vulva or anus or mouth, and for purposes of this 

subparagraph contact involving the penis occurs upon penetration, however slight; 

or

(b) the penetration, however slight, of the vulva or anus or mouth of another by any 

part of the body or by any object, with an intent to abuse, humiliate, harass, or 

degrade any person or to arouse or gratify the sexual desire of any person.116

106 Id.

107 2012 MCM pt. IV, ¶ 45(g)(5) (emphasis added). 

108 Clark, supra note 66, at 2.

109 Id.; 2012 MCM pt. IV, ¶ 45(g)(5)(C).

110 Schenck, supra note 71, at 452; Schulhofer Letter, supra note 61, at 2. 

111 Schenck, supra note 71, at 451.

112 Id.

113 Id. at 452.

114 Schulhofer Letter, supra note 61, at 1.

115 Transcript of JPP Public Meeting 44 (Oct. 10, 2014) (Panel deliberations).

116 2012 MCM pt. IV, ¶ 45 (g)(1)(A),(B).
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One witness observed that a military member who put his or her finger in the mouth of another to 

abuse or harass that person could be charged as committing a sexual act under part (b) of the 2012 

definition.117 A military defense counsel recommended amending the definition to eliminate the 

potential of a sexual assault conviction in cases in which objects or “any body part” are inserted into 

another’s mouth for a purpose that is not sexual.118

The JPP also heard testimony that the statute’s definition of sexual contact may either be too narrow or 

overbroad. The current version of Article 120 defines “sexual contact” as follows:

(A) touching or causing another person to touch, either directly or through the 

clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, 

with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the 

clothing, any body part of any person, if done with an intent to arouse or gratify 

the sexual desire of any person.119

The definition of sexual contact in the 2012 version of Article 120 was expanded from the 2007 

version, in which a sexual contact was defined as

the intentional touching, either directly or through the clothing, of the genitalia, anus, 

groin, breast, inner thigh, or buttocks of another person, or intentionally causing 

another person to touch, either directly or through the clothing, the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, 

or degrade any person or to arouse or gratify the sexual desire of any person.120

Witnesses before the JPP were split on whether the new definition of sexual contact was too narrow or 

was overly broad. Those who criticized the definition as too narrow contended that the statute does 

not include a sexual touching of another person through the use of an inanimate object (e.g., a doctor 

using a stethoscope).121 The Army Court of Criminal Appeals issued a recent unpublished opinion on 

this exact issue and found otherwise, holding that touching with a stethoscope, “if done under requisite 

circumstances, can constitute a sexual contact.”122

Conversely, those who viewed the definition as overly broad reasoned that the definition allows 

for possible inclusion of “hypotheticals [that are] absurd”; one observed that “if the absurdity 

can be removed from the definition, then I think it adds respect to the law.”123 Another presenter 

117 Transcript of JPP Public Meeting 105 (Sept. 19, 2014) (testimony of MAJ Frank E. Kostik, Jr., U.S. Army, Senior Defense 

Counsel).

118 Id.

119 2012 MCM pt. IV, ¶ 45(g)(2)(A),(B). 

120 2008 MCM pt. IV, ¶ 45(t)(2).

121 Transcript of JPP Public Meeting 11 (Sept. 19, 2014) (testimony of Ms. Teresa Scalzo, Highly Qualified Expert, U.S. Navy 

Trial Counsel Assistance Program).

122 United States v. Schloff, Misc. No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (unpublished opinion).

123 Transcript of JPP Public Meeting 302–03 (Aug. 7, 2014) (testimony of COL Timothy Grammel, U.S. Army (Retired)).
35

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

agreed, noting that the definition could be used to impose unnecessary or inappropriate collateral 

consequences, such as sex offender registration for acts of touching that are not necessarily sexual.124

During deliberations, members of the JPP agreed that additional review of these definitions is 

warranted, and the JPP recommends that a subcommittee conduct further evaluation and provide 

recommendations.

4. Issues Related to Statutory Elements and Additional Offenses

a. Should the accused’s knowledge of a victim’s capacity to consent be a required element of sexual 

assault?

According to Article 120 (b)(2) and (b)(3), a person is guilty of a sexual assault when 

he or she

(2) commits a sexual act upon another person when the person knows or reasonably 

should know that the other person is asleep, unconscious, or otherwise unaware 

that the sexual act is occurring; or

(3) commits a sexual act upon another person when the other person when the other 

person is incapable of consenting to the sexual act due to—

(A) impairment by any drug, intoxicant, or other similar substance, and that 

condition is known or reasonably should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known 

or reasonably should be known by the person.125

The requirement to prove that the accused knew or reasonably should have known is not found in the 

federal sexual abuse statute, 18 U.S.C. § 2242, upon which Article 120(b)(2) and (b)(3) were based.126

The JPP received testimony that this additional requirement in Article 120 is essentially an extra mens 

rea element that the prosecution must prove, which, in turn, affords unnecessary protections to the 

accused.127

During deliberations, the JPP decided that additional review by a subcommittee is warranted to assess 

this knowledge requirement included in Article 120 and to provide recommendations.

124 Transcript of JPP Public Meeting 249–52 (Aug. 7, 2014) (testimony of Mr. William E. Cassara, Attorney at Law, U.S. 

Army (Retired)).

125 2012 MCM pt. IV, ¶ 45(b)(2),(3) (emphasis added).

126 Schenck, supra note 71, at 453; see also Jackson Email, supra note 40. Section 2242 states: “Whoever, in the special 

maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in 

which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal 

department or agency, knowingly (1) causes another person to engage in a sexual act by threatening or placing that 

other person in fear (other than by threatening or placing that other person in fear that any person will be subjected 

to death, serious bodily injury, or kidnapping); or (2) engages in a sexual act with another person if that other person 

is (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or 

communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and 

imprisoned for any term of years or for life.” 18 U.S.C. § 2242 (2012).

127 Schenck, supra note 71, at 453.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

b. Should the offense of “indecent act” be added to the UCMJ as an enumerated offense?

The UCMJ offense of “indecent acts with another” traditionally proscribed a variety of sexual 

misconduct that was not otherwise prohibited, such as consensual sexual intercourse in the presence 

of others and sex acts with an animal or a corpse.128 The 2007 amendment to Article 120 moved 

“indecent acts with another” from Article 134 to Article 120 and eliminated the element of the 

conduct as prejudicial to good order and discipline or discrediting the Service.129 The 2012 amendment 

to Article 120, however, removed the offense entirely. Currently, “indecent act” is not an enumerated 

offense under the UCMJ.130

The JPP received testimony that the statute should be amended to restore indecent acts as an 

enumerated offense.131 The prosecution may still charge an indecent act as a general disorder offense 

under Article 134, but it must prove as an additional element that the conduct was prejudicial to good 

order and discipline or discredited the Service.132 In addition, the maximum punishment for a general 

disorder Article 134 offense is four months’ confinement and forfeiture of two-thirds pay per month 

for four months, whereas the maximum punishment for an indecent act charged under the 2007 

version of Article 120 was up to five years’ confinement, forfeiture of all pay and allowances, and a 

dishonorable discharge.133

During deliberations, members of the JPP agreed that additional review was necessary to consider 

whether indecent acts should be restored as an enumerated offense. The JPP recommends that a 

subcommittee conduct further evaluation and provide recommendations.

5. Initial JPP Assessment of Article 120 Definitions and Elements

The JPP believes that a subcommittee should further evaluate each issue describe above regarding 

definitions and elements for offenses according to the 2012 version of Article 120. In particular, the 

subcommittee should explore the following questions: 

1. Is the current definition of “consent” unclear or ambiguous?

2. Should the statute define defenses relying on the victim’s consent or the accused’s mistake of 

fact as to consent in sexual assault cases?

3. Should the statute define “incapable of consenting?”

4. Is the definition concerning the accused’s “administration of a drug or intoxicant” overbroad?

5. Does the definition of “bodily harm” require clarification?

6. Is the definition of “threatening wrongful action” ambiguous or too narrow?

128 Schenck, supra note 71, at 449. 

129 Id.

130 Id. at 448.

131 Transcript of JPP Public Meeting 60 (Sept. 19, 2014) (testimony of LTC Alexander N. Pickands, U.S. Army, Chief, Trial 

Counsel Assistance Program).

132 Schenck, supra note 71, at 449; see also 2012 MCM pt. IV, ¶ 60c(5) (explaining that in charging a general disorder offense 

under Article 134, the government also has to ensure that offense alleged is not covered by another enumerated, punitive 

offense under UCMJ).

133 See United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011) (clarifying maximum punishment for general disorder offenses 

charged under Article 134); 2012 MCM, app. 28, at 11 (Paragraph 45.f(6)) (providing maximum punishment for indecent 

acts charged under 2007 version of Article 120). 
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II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

7. How should fear be defined to acknowledge both subjective and objective factors?

8. Is the definition of “force” too narrow?

9. Are the definitions of “sexual act” and “sexual contact” too narrow, or are they overly broad?

10. Should the accused’s knowledge of a victim’s capacity to consent be a required element of 

sexual assault?

11. Should the offense of “indecent act” be added to the UCMJ as an enumerated offense?

The subcommittee should assess what effect, if any, each issue has had in military justice practice and 

whether appellate review is pending or anticipated that would provide additional insight regarding 

interpretation of the terms. If the subcommittee members determine that change is necessary or 

warranted, their recommendations should offer specific language for proposed amendment(s). In 

assessing options for changes to Article 120, the subcommittee should consider how effectively each 

option resolves the concern and what effect the amendment would likely have on the prosecution or 

defense of sexual assault crimes in the military judicial system. They should also determine whether the 

importance of stability outweighs the importance of clarity.

C. COERCIVE SEXUAL RELATIONSHIPS AND ABUSE OF AUTHORITY

1. Coercive Sexual Relationships within Criminal Law 

According to the Model Penal Code, “American law has long since moved beyond the early 20th 

century view that physical harm and threats of violence were the only impermissible means by which 

to secure submission to a sexual demand.”134 Many civilian jurisdictions now criminalize a sexual 

intrusion upon another when consent to that intrusion has been coerced by impermissible pressures 

or threats.135 In addition to those coerced by traditional methods, jurisdictions now criminalize 

certain sexual relationships in which a perpetrator with some authority over a subordinate wields that 

authority to coerce that individual into a sexual encounter.136 Such relationships include prison guards 

and prisoners, parole officers and parolees, and probation officers and those on probation.137 The 

proposed Model Penal Code explains that “the need for additional statutory coverage arises primarily 

because of the pervasive ability of [those] in positions of power to deploy more subtle threats and 

improper offers of special privileges . . . .”138

Because of the command structure in which they work, military members may be particularly 

vulnerable to coercive sexual relationships.139 Accordingly, certain relationships, including those of 

a sexual nature, between select individuals in the military are considered inherently coercive and are 

134 American Law Institute, Model Penal Code: Sexual Assault and Related Offenses: Tentative Draft No. 1, at 48 (2014), 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140807/03_ProposedRevision_MPC213_

Excerpt_201405.pdf.

135 Id.

136 Id.

137 Id. at 56.

138 Id.

139 U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 4-14 (Nov. 6, 2014), available at http://www.apd.army.

mil/pdffiles/r600_20.pdf.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

strictly prohibited by Service regulations.140 Specifically, each military Service has regulations that 

strictly prohibit and criminalize sexual relationships between senior and subordinate military members 

within the same direct chain of command, trainers and trainees, and recruiters and recruits.141

2. Current Practices for Charging Coercive Sexual Relationships In the Military 

a. Charging Coercive Sexual Relationships Outside of Article 120

In the FY14 NDAA, Congress codified the requirement that the military Services must have policies 

prohibiting Service members in positions of authority from having relationships with recruits and 

trainees. Section 1741 requires the military Services to maintain policies and/or regulations that define 

inappropriate and prohibited relationships, communication, conduct, and contact between members 

of the Armed Forces who exercise authority or control over, or supervise, prospective members or 

persons in entry-level processing or training.142 The provision requires Service policies to specify that 

such conduct is subject to punitive action under the UCMJ and that the offender will automatically be 

processed for administrative separation if a punitive discharge is not adjudged at a court-martial.143

Section 1741 further required the Secretary of Defense to report back to Congress within 120 days 

on whether an additional article should be created under the UCMJ to address violations of these 

policies.144

In its May 2014 “Report on Protections for Prospective Members,” DoD stated that each of the 

military Services had punitive regulations prohibiting coercive relationships and described how 

violations could be charged under the UCMJ:145

Service members who violate a punitive regulation may be punished under Article 

92(1) for failure to obey a lawful general order or regulation. So long as the punitive 

regulation is lawful, knowledge is imputed to the service member and is not an element 

of the offense.146

The maximum punishment that may be imposed at a court-martial for a violation of this provision 

of Article 92 is a dishonorable discharge (or dismissal for an officer), forfeiture of all pay and 

140 Id. 

141 See generally id., ch. 4; U.S. Dep’t of Air Force, Instr. 36-2909, Professional and Unprofessional Relationships (June 19, 

2014), available at http://static.e-publishing.af.mil/production/1/af_ja/publication/afi36-2909/afi36-2909.pdf; U.S. Dep’t

of Navy, Sec’y of Navy Instr. 5300.26D, Department of the Navy (DON) Policy on Sexual Harassment (Jan. 3, 2006), 

available at http://doni.daps.dla.mil/Directives/05000%20General%20Management%20Security%20and%20Safety%20

Services/05-300%20Manpower%20Personnel%20Support/5300.26D.pdf; U.S. Marine Corps, Order 1000.9A, Sexual

Harassment (May 30, 2006), available at http://www.marines.mil/Portals/59/Publications/MCO%201000.9A.pdf; U.S. 

Coast Guard, Commandant Instr. M1000.6A , Personnel Manual, ch. 8, § H (Interpersonal Relationships with the Coast 

Guard) (May 14, 2002), available at http://isddc.dot.gov/OLPFiles/USCG/010564.pdf.

142 FY14 NDAA, Pub. L. No. 113-66, § 1741, 127 Stat. 672 (2013).

143 Id.

144 FY14 NDAA, Pub. L. No. 113-66, § 1741(d), 127 Stat. 672 (2013).

145 U.S. Dep’t of Def., Report on Protections for Prospective Members and New Members of the Armed Forces

During Entry-Level Processing and Training 2 (May 2014) [hereinafter DoD Report on Protections for

Prospective Members], available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140919/29_

ReportOnProtectionsForProspectiveMembers_DoD_2014.pdf.

146 See 2012 MCM pt. IV, ¶ 16.c.(1)(d) (2012).
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II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

allowances, and confinement for two years.147 Coercive relationships may also be charged, depending 

on the specific facts of the offense, under Article 93, maltreatment; Article 128, assault; or Article 

134, conduct that discredits the Service or is prejudicial to good order and discipline. “Report on 

Protections for Prospective Members” stated that a new UCMJ article or an additional provision 

under Article 120 was not required because “statutes and regulations are in place to hold offenders 

appropriately accountable when prospective and new members of the military are victimized by service 

members who exercise control over them.”148

Those who testified before the JPP against changing Article 120 highlighted the articles and regulations 

that already prohibit inappropriate coercive sexual relationships.149 Numerous witnesses, including 

prosecutors, staff judge advocates, military justice experts, a civilian defense counsel, and the Army’s 

Judge Advocate General, told the JPP that current UCMJ punitive articles and regulations sufficiently 

criminalize sexual relationships between senior officials and subordinates, trainers and trainees, and 

recruiters and recruits, contending that the statute does not require further revision.150

Several witnesses, however, told the JPP that prosecuting offenses of senior-subordinate relationships 

under punitive articles other than Article 120 is not sufficient, because conviction under them generally 

does not require sex offender registration.151 They contend that such offenses should be charged and 

viewed as sex offenses, because while a sexual relationship between a senior and a subordinate may 

appear consensual, the inherently coercive nature of the relationship prevents the subordinate from 

rendering freely given consent. 

b. Charging Coercive Sexual Relationships Under Article 120

Any case involving overt force or threat of force may be charged as an offense under Article 120. But 

for cases that involve coercive sexual relationships without overt force, the ability to charge conduct as 

a criminal offense under Article 120 has been diminished by amendments to the statute.

Under the pre-2007 version of Article 120, cases without overt force relied on the doctrine of 

constructive force—an alternative legal theory that recognizes use of threats and intimidation to gain 

control or prevent resistance as a type of force.152 Military courts further developed this theory to 

address instances of clearly nonconsensual sexual acts—especially between military members with 

rank disparity—when there was no use of overt physical force.153 The necessary force was found to 

147 Id.

148 DoD Report on Protections for Prospective Members, supra note 145, at 1, 12–13 (e.g., Articles 92, 93, 120, 120(c), 

128, 133, and 134).

149 See Transcript of JPP Public Meeting 242 (Sept. 19, 2014) (testimony of CAPT Robert Crow, U.S. Navy, Director, 

Criminal Law Division (OJAG Code 20)); id. at 62 (Sept. 19, 2014) (testimony of LTC Alexander N. Pickands, U.S. Army, 

Chief, Trial Counsel Assistance Program) (distinguishing articles used to charge inappropriate relationships as “military 

discipline offenses” from Article 120 sexual assault offenses).

150 See Transcript of JPP Public Meeting 253 (Aug. 7, 2014) (testimony of Mr. William E. Cassara, Attorney at Law, U.S. 

Army (Retired)); see also Transcript of JPP Public Meeting 158 (Sept. 19, 2014) (testimony of CAPT Steven J. Andersen, 

U.S. Coast Guard, Commanding Officer, Legal Services Command); id. at 179 (testimony of Maj Melanie J. Mann, U.S. 

Marine Corps, Military Justice Officer). 

151 See, e.g., Transcript of JPP Public Meeting 207 (Sept. 19, 2014) (testimony of LTC Michael E. Sayegh, U.S. Marine Corps, 

Staff Judge Advocate, Training Command).

152 Black’s Law Dictionary 656 (10th ed. 2014).

153 DoD Report on Protections for Prospective Members, supra note 145, at 2.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

belong by nature to fear, coercion, or abuse of authority.154 However, the mere existence of a sexual 

relationship between individuals of a different rank was not alone enough to sustain a conviction 

under Article 120 of the UCMJ.155 Under the constructive force doctrine, military appellate courts 

determined that the victim’s lack of consent must be manifest and/or the accused must have explicitly 

used the difference in rank to create a situation of dominance and control.156

The 2007 version of Article 120 eliminated the need for the judicially created doctrine of constructive 

force by adding a specific provision addressing coercive or threatening relationships between 

individuals of different rank. The definition of “placing in fear” was expanded to include “the use 

or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or 

negatively, the military career of some person.”157 Thus, sexual interactions between senior military 

personnel and their subordinates that met the statutory elemental requirements could be charged as 

aggravated assault or abusive sexual contact under Article 120. Other provisions of Article 120 applied 

when actual force or threat of force was involved.158

The 2012 version of Article 120 does not contain language that specifically addresses the use of 

military rank to threaten or coerce, without force, an individual into a sexual relationship. Instead, the 

current statute includes the following definition:

The term ‘threatening or placing that other person in fear’ means a communication or 

actions that is of sufficient consequence to cause a reasonable fear that non-compliance 

will result in the victim or another person being subjected to the wrongful action 

contemplated by the communication or action.159

Some witnesses told the JPP that the current statutory language in Article 120 does not clearly 

criminalize sexual relationships between senior personnel and their subordinates resulting from 

coercion and/or abuse of authority when force and lack of consent are not overtly present.160 Two 

witnesses described the difficulty of charging coercive sexual relationships as sexual assault offenses 

under Article 120(b)(1)(A), a sexual act accomplished though fear of wrongful action, noting that the 

statutory language was ineffective for such cases.161 The witnesses recommended amending Article 120 

to specifically encompass situations in which senior Service members use their position of authority to 

coerce a subordinate into a sexual act or contact.162 Representative Lois Frankel supplied a proposed 

154 Id.

155 Id.

156 Major Timothy Grammel, Justice and Discipline: Recent Developments in Substantive Criminal Law, Army Law., 

Apr. 2001, at 64, 65.

157 2008 MCM pt. IV, ¶ 45(t)(7)(b)(ii).

158 Id. 

159 2012 MCM pt. IV, ¶ 45(g)(7).

160 Transcript of JPP Public Meeting 137 (Sept. 19, 2014) (testimony of Rep. Lois Frankel, D-22nd FL); id. at 142 (testimony 

of Ms. Elisha Morrow).

161 Transcript of JPP Public Meeting 58 (Sept. 19, 2014) (testimony of LTC Alexander N. Pickands, U.S. Army, Chief, Trial 

Counsel Assistance Program); see also Schulhofer Letter, supra note 61, at 3. 

162 Transcript of JPP Public Meeting 58 (Sept. 19, 2014) (testimony of LTC Alexander N. Pickands, U.S. Army, Chief, Trial 

Counsel Assistance Program).
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II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

amendment to Article 120 to add a specific provision for offenses committed by use of the person’s 

position of authority.163

DoD’s May 2014 report observed that various provisions of Article 120 are available for prosecutors 

to charge sexual relationships between senior and subordinate Service members when the conduct 

meets the elements of the offense.164 Two witnesses testifying before the JPP noted that Article 120(b)

(1)(B), which classifies a sexual act causing bodily harm as sexual assault, may apply to offenses when 

the victim is unable to consent, according to the concept of constructive force—for example, a drill 

sergeant having sexual intercourse with a trainee.165 The Army Judge Advocate General recounted to 

the JPP the Army’s most recent successful prosecution of a drill sergeant who misused his position; his 

indictment under Article 120(b)(1)(A) relied on the theory of constructive force.166

However, it is not clear that the examples described by these witnesses capture all conduct that may be 

criminally objectionable. For example, the most recent Army case cited by the Army Judge Advocate 

General involved a drill sergeant who threatened wrongful action against the subordinate victims—

asserting that he would kick them out of the Army if they did not comply.167 It is less clear that the 

same theory would have permitted charging the offense under Article 120 if the drill sergeant had 

instead proposed action to benefit the victims—for example, promising they would be selected for 

promotion or special schools if they complied. 

The definition for “threatening or placing that other person in fear” used in the 2012 version of Article 

120 is less encompassing than the 2007 definition. The JPP agrees that as a result, the 2012 version of 

Article 120 does not sufficiently criminalize sexual relationships between senior and subordinates when 

force or the threat of force is not overt.

3. Strict Liability for Trainer-Trainee Offenses

In 2013, Representative Jackie Speier proposed legislation to create a strict liability offense when a 

training instructor engages in a sexual relationship with a trainee who is undergoing basic training 

or within 30 days of such training. The bill proposes to criminalize under Article 120 any sexual 

relationship between an instructor and trainee, presuming an absence of consent.168 During her 

testimony to the JPP, Representative Speier described numerous trips to basic training bases. In her 

view, military culture and the strict adherence to rank and authority that is thrust upon basic trainees 

lead to a coercive environment in which trainees simply do not believe they can refuse advances by 

their more senior instructors.169

163 See Written Submission of Representative Lois Frankel, “Red Line Version of Article 120 with Frankel Proposal” (Sept. 

19, 2014); see also Transcript of JPP Public Meeting 136–38 (Sept. 19, 2014) (testimony of Rep. Lois Frankel, D-22nd 

FL).

164 DoD Report on Protections for Prospective Members, supra note 145, at 13.

165 Transcript of JPP Public Meeting 173 (Sept. 19, 2014) (testimony of LCDR Ryan J. Stormer, U.S. Navy, Trial Counsel 

Assistance Program); id. at 181 (testimony of LTC Jim Varley, U.S. Army, Deputy Chief, Government Appellate Division). 

166 See Transcript of JPP Public Meeting 258 (Dec. 12, 2014) (testimony of LTG Flora D. Darpino, The Judge Advocate 

General, U.S. Army). 

167 Alan S. Zagier, Fort Leonard Wood Drill Sergeant Found Guilty of Sex Assaults, Army Times, Sept. 24, 2014, available at

http://archive.armytimes.com/article/20140924/NEWS06/309240058/Fort-Leonard-Wood-drill-sergeant-found-guilty-sexassaults.

168 H.R. 430, 113th Cong. (2013), Protect Our Military Trainees Act.

169 Transcript of JPP Public Meeting 128 (Sept. 19, 2014) (testimony of Rep. Jackie Speier, D-14th CA). 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

Representative Speier told the JPP that the issue of consent was paramount during recent courtsmartial of military training instructors who were accused of sexually assaulting trainees at Lackland 

Air Force Base, Texas. She noted that many of the instructors acknowledged sexual relationships with 

the trainees but argued at trial that the relationships were consensual and therefore not criminal. She 

stated that on the basis of this defense, many of the instructors were found not guilty of sexual offenses 

but guilty of lesser offenses that did not carry the collateral consequence of having to register as a sex 

offender.170 From these outcomes, Representative Speier concluded that the UCMJ and Article 120 do 

not properly deal with military training environments, and she declared, “I believe there should be 

strict liability.” She also told the JPP that current military regulations discourage victims from reporting 

sexual assaults resulting from abuse of authority, because they leave victims subject to possible UCMJ 

action for engaging in consensual relationships with instructors.171

In law, strict liability is liability that does not depend on intent to harm. Instead, it is based on the 

breach of an absolute duty to make something safe.172 In this context, strict liability would make the 

trainer who engages in a sexual act with a trainee guilty of a sexual assault owing solely to his or 

her position of trust and authority as it relates to the victimized subordinate. The assumption of this 

legal theory is that trainers of military personnel have an absolute duty to make safe every aspect 

of the training environment—from equipment integrity to command structure and interpersonal 

relationships. Any deviation from this standard would be an affront to the authority placed in 

those leaders and would cause trainees to distrust the immediate chain of command and military 

leadership as a whole.173 In an opinion piece, Congresswoman Speier wrote, “There should be strict 

accountability for any [trainer] who has sex with his or her trainee. Period. There is clearly no consent 

when a training instructor tells you do something in an environment where the student is at his [or her] 

mercy 24/7.”174

The JPP heard from numerous witnesses who recommended against a strict liability standard that 

would remove any consideration of the trainer’s intent.175 Witnesses contended that such a standard 

would be overbroad, criminalize truly consensual relationships, and result in unjust outcomes.176

Other witnesses reasoned that the UCMJ already criminalizes such conduct, that the current charging 

mechanisms appropriately cover abuses of power in training environments, and that an additional 

punitive provision is not necessary.177

170 Id. at 128.

171 Id. at 129, 131. 

172 Black’s Law Dictionary 926 (10th ed. 2014). 

173 U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Prevention and Reporting of Sexual Assault and Other 

Misconduct in Initial Military Training (Sept. 25, 2012), available at http://www.sapr.mil/public/docs/news/Prevention_

and_Report_of_Sexual_Assault.pdf.

174 Reps. Jackie Speier, Susan Davis, and Loretta Sanchez, Code of Military Justice Needs to Be Updated for 21st Century, 

San Antonio Express-News, Oct. 8, 2012, available at http://www.mysanantonio.com/opinion/commentary/article/Codeof-Military-Justice-needs-to-be-updated-for-3929510.php.

175 See Transcript of JPP Public Meeting 192 (Sept. 19, 2014) (testimony of LTC Jim Varley, U.S. Army, Deputy Chief, 

Government Appellate Division); id. at 183 (testimony of LTC Michael E. Sayegh, U.S. Marine Corps, Staff Judge 

Advocate, Training Command).

176 See Transcript of JPP Public Meeting 192 (Sept. 19, 2014) (testimony of LTC Jim Varley, U.S. Army, Deputy Chief, 

Government Appellate Division); id. at 183 (testimony of LTC Michael E. Sayegh, U.S. Marine Corps, Staff Judge 

Advocate, Training Command).

177 See Transcript of JPP Public Meeting 253 (Aug. 7, 2014) (testimony of Mr. William E. Cassara, Attorney at Law, U.S. 

Army (Retired)); see also Transcript of JPP Public Meeting 201–02 (Sept. 19, 2014) (testimony of CAPT Steven J. 

Andersen, U.S. Coast Guard, Commanding Officer, Legal Services Command); id. at 186–87 (testimony of Col Polly S. 
43

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

4. Initial JPP Assessment of Coercive Sexual Relationships and Abuse of Authority Cases

The JPP believes that a subcommittee should evaluate coercive sexual relationships and situations 

involving abuse of authority and provide recommendations regarding Article 120. Specifically, the 

subcommittee should consider the following questions:

1. Is the current practice of charging inappropriate relationships or maltreatment under articles of 

the UCMJ other than Article 120 appropriate and effective when sexual conduct is involved?

2. Does the 2012 version of the UCMJ afford prosecutors the ability to effectively charge coercive 

sexual relationships or those involving abuse of authority under Article 120?

3. Should the definition of “threatening or placing that other person in fear” be amended to 

ensure that coercive sexual relationships or those involving abuse of authority are covered 

under an existing Article 120 provision?

4. Should a new provision be added under Article 120 to specifically address coercive sexual 

relationships or those involving abuse of authority?

5. Should sexual relationships between basic training instructors and trainees be treated as strict 

liability offenses under Article 120?

6. As an alternative to further amending Article 120, should coercive sexual relationships 

currently charged under other articles of the UCMJ be added to DoD’s list of offenses that 

trigger sex offender registration?

D. SEPARATING PENETRATIVE AND CONTACT (NON-PENETRATIVE) 

OFFENSES

In 2014, the Response Systems to Adult Sexual Assault Crimes Panel recommended that the JPP 

consider “whether to recommend legislation that would either split sexual assault offenses under 

Article 120 of the UCMJ into different articles that separate penetrative and contact offenses from 

other offenses or narrow the breadth of conduct currently criminalized under Article 120.”178 During 

its review, the RSP compared the statutory framework of Article 120 to civilian rape and sexual assault 

statutes and found that some civilian statutes separate penetrative offenses from less serious contact 

offenses and include them under different articles or provisions of a criminal code.179 The RSP heard 

that “sexual assault [usually] refers to felony-level crimes like rape, penetrative offenses. Misdemeanors 

are contact offenses, contact with an intent to satisfy sexual desires, sexual gratification.” In contrast, 

Article 120 “spans all of those things” and includes “a very broad range of conduct.” The RSP found 

that such a structure may lead to conflated or incorrect statistics on sexual assault in the military 

because contact offenses are labeled as sexual assault.180

The JPP heard testimony on the issue from witnesses who advocated both for and against bifurcation. 

Those in favor argued that bifurcation would provide more clarity to trial practitioners and clearly 

Kenny, U.S. Air Force, Staff Judge Advocate, Air Education and Training Command).

178 RSP Report, supra note 3, at 48 (Recommendation 113); see also Transcript of RSP Public Meeting 215 (May 29, 2014) 

(Panel deliberations).

179 RSP Report, supra note 3, at 27.

180 See Transcript of RSP Public Meeting 212 (May 5, 2014) (presentation of Dean Elizabeth Hillman, Chair, Comparative 

Systems Subcommittee, to RSP). 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

separate more egregious penetrative offenses from less severe contact offenses.181 Those opposed said that 

amending Article 120 again would only add to the confusion of trial practitioners by creating yet another 

statutory scheme (the fourth in a decade).182 These witnesses said that proper training and experience 

would alleviate any existing confusion regarding the current statute, and they recommended against 

separating the offenses.183 In particular, during the December 2014 public meeting, the Judge Advocate 

General of the Coast Guard told the JPP that he saw continued value in grouping penetrative and contact 

offenses together under one article. Specifically, he noted that bifurcation could send an unintended 

message that non-penetrative sexual offenses are less worthy of concern and therefore more tolerable.184

During deliberations, the JPP agreed that bifurcating different types of sex offenses under the UCMJ at 

this time would create further confusion. The members agree that there is no compelling need for this 

change and that categorizing sex offenses is complicated whether they are combined in one statute or 

separated. The JPP does not believe bifurcation to be necessary and concludes that this issue does not 

warrant further evaluation or assessment. 

E. JPP ANALYSIS AND RECOMMENDATIONS ON ARTICLE 120

From the outset, the JPP has been mindful of potential harm that may result from further revisions to 

Article 120, a statute that has already been significantly revised twice in recent years. The JPP heard 

from numerous witnesses who recommended strongly against any major revisions to the statute.185

Presenters told the JPP that military justice practitioners must currently navigate through three 

different statutes with different definitions and requirements, which vary according to the time frame 

of an alleged offense. 

The senior military attorneys of each of the Services and other practitioners cautioned against 

continued revisions to Article 120. Noting the unique purpose of military law, the Air Force Judge 

Advocate General urged the JPP to consider that changes to the UCMJ should be tailored to 

promoting justice, maintaining good order and discipline, and promoting efficiency in the military 

establishment.186 Witnesses also highlighted other avenues, such as executive orders, case law, and 

judicial instructions, that could be used to provide clarity and additional guidance to alleviate many of 

the concerns articulated to the JPP.187

181 See Transcript of JPP Public Meeting 297 (Aug. 7, 2014) (testimony of Col Gary M. Jackson, U.S. Air Force, Staff Judge 

Advocate, Global Strike Command).

182 See Transcript of JPP Public Meeting 200, 299 (Aug. 7, 2014) (testimony of Mr. Dwight Sullivan, Office of the General 

Counsel, Department of Defense); id. at 301 (testimony of COL Timothy Grammel, U.S. Army (Retired)). 

183 See id.

184 See Transcript of JPP Public Meeting 287 (Dec. 12, 2014) (testimony of RADM Steven D. Poulin, Judge Advocate General 

and Chief Counsel, U.S. Coast Guard); see also Transcript of JPP Public Meeting 200, 299 (Aug. 7, 2014) (testimony 

of Mr. Dwight Sullivan, Office of the General Counsel, Department of Defense); id. at 301 (testimony of COL Timothy 

Grammel, U.S. Army (Retired)).

185 See Transcript of JPP Public Meeting 11 (Sept. 19, 2014) (testimony of Ms. Teresa Scalzo, Highly Qualified Expert, U.S. 

Navy Trial Counsel Assistance Program); see also Transcript of JPP Public Meeting 270 (Aug. 7, 2014) (testimony of Col 

Gary Jackson, U.S. Air Force); id. at 265 (testimony of COL Timothy Grammel, U.S. Army (Retired)).

186 See Transcript of JPP Public Meeting 273 (Dec. 12, 2014) (testimony of Lt Gen Christopher F. Burne, The Judge Advocate 

General, U.S. Air Force).

187 See Transcript of JPP Public Meeting 98 (Sept. 19, 2014) (testimony of Lt Col Julie L. Pitvorec, U.S. Air Force, Chief 

Senior Defense Counsel); see also Transcript of JPP Public Meeting 273 (Aug. 7, 2014) (testimony of CAPT Christian 

Reismeier, Chief Judge, Department of the Navy).
45

II. ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

While additional amendments may complicate the jobs of prosecutors, the JPP believes that terms 

and definitions within the statute must be clear to avoid confusion about standards of behavior and 

expectations, especially since sexual assault prevention training for Service members uses language 

from Article 120. The statutory issues identified to the JPP and the concerns about the potential 

consequences of additional statutory amendments demonstrated to the JPP members that additional 

review is important and justified. The JPP subcommittee should closely consider the issues discussed in 

this report and evaluate the potential consequences of changes or amendments.
46

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
47

Special Victims’ 

Counsel Programs III.

A. OVERVIEW OF THE SPECIAL VICTIMS’ COUNSEL PROGRAMS

On August 14, 2013, the Secretary of Defense directed that special victims’ counsel188 programs be 

established within each military Service.189 Four months later, on December 26, 2013, the President 

signed the National Defense Authorization Act for Fiscal Year 2014, which amended Title 10, Section 

1044e, of the United States Code to require special victims’ counsel programs within each military 

Service for the purpose of “providing legal assistance to military victims of sexual assault.”190 The 

statute detailed the scope of a special victims’ counsel’s assistance, qualifications, training, and 

availability, and declared the relationship between a victim and a special victims’ counsel to be that 

between attorney and client.191 The statute made each Service’s Judge Advocate General (JAG) or Staff 

Judge Advocate (SJA) to the Commandant responsible for establishing and supervising special victims’ 

counsel.192 Each Service has since implemented various regulations and procedures for their respective 

SVC programs.193

The Air Force established its permanent SVC program on June 1, 2013.194 One month later, on July 

12, 2013, the Coast Guard implemented its SVC program.195 The Navy’s Victims’ Legal Counsel 

Program (VLCP) began in August 2013, with the Marine Corps’ Victims’ Legal Counsel Organization 

(VLCO) following in October 2013.196 Both programs reached full operating capacity in January 

2014. The Army implemented its program on November 1, 2013.197 Table 3.1 outlines the status and 

organizational structure of each program as of November 14, 2014.

188 Victims’ counsel within the Navy and Marine Corps are known as victims’ legal counsel (VLC); however, for the purposes 

of this report, the term “SVCs” will be used when referring generally to victims’ counsel across the Services.

189 U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response (Aug. 14, 

2013), available at http://www.sapr.mil/public/docs/news/SECDEF_Memo_SAPR_Initiatives_20130814.pdf.

190 FY14 NDAA, Pub. L. No. 113-66, § 1716(a)(1)(A), 127 Stat. 672 (2013) (inserting 10 U.S.C. § 1044e).

191 FY14 NDAA, Pub. L. No. 113-66, § 1716(a), 127 Stat. 672 (2013) (inserting 10 U.S.C. § 1044e(b)–(d)).

192 FY14 NDAA, Pub. L. No. 113-66, § 1716(a), 127 Stat. 672 (2013) (inserting 10 U.S.C. § 1044e(e)(1)).

193 See generally Services’ Responses to JPP Request for Information 19(c) (Nov. 6, 2014).

194 U.S. Dep’t of Def., Report on Implementation of Section 1716 of the National Defense Authorization Act for Fiscal

Year 2014, at 6 (Apr. 2014) [hereinafter DoD Report on Section 1716 Implementation], available at http://jpp.whs.mil/

Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20141114/03_DoD_ReportImplementation_Sec1716_FY14NDAA.pdf. 

From January to May 2013, the Air Force implemented a pilot SVC program consisting of 60 judge advocates serving as 

part-time SVCs. See id.

195 Id. at 8.

196 Id. at 2–4.

197 Id. at 1.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

Table 3.1. Size and Structure of the Special Victims’ Counsel Programs (as of November 14, 2014)

Service Personnel/Locations Caseload 

(figures are aggregate since 

each program’s inception)

Reporting 

Structure

Army 76 active duty SVCs

75 Reserve SVCs

Support staff assigned by the 

installation SJA

37 offices

Note: SVCs also have collateral duty 

as legal assistance attorneys

1,434 clients

7,995 consultations with clients

1,852 interviews with TC/DC/

MCIO

304 courts-martial appearances

330 post-trial counseling sessions

3 writ filings at ACCA

SVCs report to 

the chief of legal 

assistance within 

the office of the 

installation SJA 

Air 

Force

28 SVCs

10 paralegals

19 offices

Note: By summer 2015, the Air Force 

expects to have 40 SVCs assigned; 6 

additional installations will be added 

in January 2015.

1,200+ clients

1,800+ interviews

220 Article 32 investigations

183 courts-martial

SVCs report to the 

Chief, SVC Division; 

chain of command 

is independent of 

convening authorities 

or SJAs

Navy 31 VLCs

10 legal specialists (yeomen)

5 regions, 23 offices

829 clients

118 Article 32 investigations

111 pretrial motion hearings

83 general courts-martial

20 special courts-martial

63 pretrial conferences

VLCs report through 

regional VLC to the 

VLCP Chief of Staff; 

chain of command 

is independent of 

convening authorities 

or SJAs

Marine 

Corps

13 active duty VLCs

1 activated Reserve VLC

9 legal support personnel

4 regions; 11 offices

422 clients VLCs report to 

the VLCO Officer 

in Charge; chain 

of command is 

independent of 

convening authorities 

or SJAs

Coast 

Guard

2 SVCs (full-time) 

18 SVCs (collateral duty) 

2 support personnel

2 full-time SVC offices with collateral 

SVCs in various locations

Note: 3 additional full-time SVCs to 

have been added in December 2014. 

99 clients SVCs report to 

the SVC Program 

Manager; chain 

of command is 

independent of 

convening authorities 

or SJAs

SOURCES: Services’ Responses to JPP Requests for Information 19(a), 19(c), 21(a), 21(c), 21(d), 21(e), 22 (a),(b) (Nov. 6, 

2014); see also Transcript of JPP Public Meeting 64 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, 

Chief, Special Victims’ Counsel Program); id. at 103 (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, Special 

Victims’ Counsel Division); id. at 93–94, 98 (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, Chief of Staff, Victims’ 

Legal Counsel Program); id. at 78–81, 84–85 (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in Charge, 

Victims’ Legal Counsel Organization); id. at 109–12 (testimony of CDR Ted Fowles, U.S. Coast Guard, Chief, Office of 

Special Victims’ Counsel). 
49

III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

Note: Personnel and location figures reflect the current number of personnel and locations serving at the time of testimony and 

data submissions. Caseload figures provide an aggregate of the Service’s entire client caseload, spanning from each program’s 

inception to the time of testimony and data submissions. The number of clients in the table refers only to adult sexual assault

clients. Marine Corps VLCs see clients for all types of criminal cases and served 745 clients total. Transcript of JPP Public 

Meeting 84–85 (Nov 14, 2014) (testimony of Col Carol K. Joyce, Officer in Charge, Victims’ Legal Counsel Organization, 

U.S. Marine Corps).

Special victims’ counsel are available to victims of sex-related offenses regardless of whether they file 

a restricted report, file an unrestricted report, or chose not to file a report.198 The primary duty of 

an SVC is to zealously represent his or her clients’ rights and interests, including during the criminal 

investigation, preliminary hearing, pretrial litigation, plea negotiations, court-martial proceedings, 

and post-trial phase of a court-martial.199 Victims may also consult with an SVC on civil legal matters, 

eligibility for military benefits, and options for responding to adverse administrative actions related 

198 FY14 NDAA, Pub. L. No. 113-66, § 1716(f)(2), 127 Stat. 672 (2013) (inserting 10 U.S.C. § 1044e(a)). Section 1716(f) 

provides:

(1) An individual eligible for military legal assistance under section 1044 of this title who is the victim of 

an alleged sex-related offense shall be offered the option of receiving assistance from a Special Victims’ 

Counsel upon report of an alleged sex-related offense or at the time the victim seeks assistance from a 

Sexual Assault Response Coordinator, Sexual Assault Victim Advocate, military criminal investigator, 

victim/witness liaison, trial counsel, a healthcare provider, or any other personnel designated by the 

Secretary concerned for purposes of this subsection. 

(2) The assistance of a Special Victims’ Counsel under this subsection shall be available to an individual 

eligible for military legal assistance under section 1044 of this title regardless of whether the individual 

elects unrestricted or restricted reporting of the alleged sex-related offense. The individual shall also be 

informed that the assistance of an SVC may be declined, in whole or in part, but that declining such 

assistance does not preclude the individual from subsequently requesting the assistance of a Special 

Victims’ Counsel.

FY14 NDAA, Pub. L. No. 113-66, § 1716(a)(1), 127 Stat. 672 (2013) (inserting 10 U.S.C. § 1044e(f)) (emphasis 

added); see also Navy’s Response to JPP Request for Information 19(a) (Nov. 6, 2014), encl. 14, Memorandum from 

Commander, Naval Legal Service Command to DoD SAPRO, subject: Navy Victims’ Legal Counsel (VLC) Program 

(June 3, 2014) (“Victims can seek assistance from a VLC at any point following a sexual assault . . . . VLC can assist 

victims in understanding and exercising their options in filing a report.”); U.S. Marine Corps, Order P5800.16A, Marine

Corps Manual for Legal Administration para. 6003.3.a (Feb. 10, 2014) (stating that “[a] victim of sexual assault shall 

be informed of and given the opportunity to consult with a VLC as soon as the victim receives assistance from a SARC, 

SAPR or FAP VA, military criminal investigator” with no language requiring the filing of a report before seeking such 

assistance), available at http://www.marines.mil/Portals/59/MCO%20P5800.16A%20W%20CH%201-7.pdf; RSP Report, 

supra note 3, at 31 (Recommendation 61) (recommending that “[t]he Secretary of Defense develop and implement policy 

and regulations such that sexual assault victims have the right and the ability to consult with a special victim counsel 

before deciding whether to make a restricted or unrestricted report, or no report at all”). DoD subsequently approved 

the RSP recommendation. DoD RSP Implementation Memo, supra note 3, at 6. But see U.S. Army, Special Victim

Counsel Handbook [hereinafter Army SVC Handbook] ch. 1 (Nov. 1, 2013) (“To be eligible for SVC assistance, a victim 

of sexual assault must make an unrestricted or restricted report of sexual assault under the UCMJ . . . .”), available at

http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_Related/03a_USA_

SpecialVictimsConsel_Handbook.pdf; U.S. Air Force, Special Victims’ Counsel Rules of Practice and Procedure 6 (Rule 

1) (July 1, 2013) [hereinafter Air Force SVC Rules] (“In order to be eligible for SVC, a victim of sexual assault must 

report (in a restricted or unrestricted report) they are a victim of sexual assault under the UCMJ . . . .”), available at http://

jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q19c_USAF.pdf; Coast Guard’s Response to JPP Request for 

Information 19(a) (Nov. 6, 2014), att. 10 (“United States Coast Guard Special Victims’ Counsel Program EOC Concept 

of Operations”) para. 6.2 (Victim Eligibility During EOC: Sex-Related Offense Defined) (stating that eligibility for an 

SVC requires that “[a] person reports (either by restricted or unrestricted report) that he or she is a victim of a sex-related

offense”).

199 See, e.g., Air Force SVC Rules, supra note 198; see also Army SVC Handbook, supra note 198, ch. 4 (Nov. 1, 2013), 

available at http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_

Related/03a_USA_SpecialVictimsConsel_Handbook.pdf.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

to their case.200 Finally, SVCs educate clients on the military justice system, the roles of sexual assault 

response personnel, and the variety of medical and other non-legal assistance available to them. SVCs 

are not part of the Victim and Witness Assistance Program (VWAP), but Air Force guidance, for 

example, notes that the legal services provided through its program are intended to align with and 

strengthen the VWAP by representing the interests of a client so that he or she can fully participate in 

the military criminal justice process.201

B. SPECIAL VICTIMS’ COUNSEL SELECTION AND EXPERIENCE

In addition to the basic qualification requirements laid out in the FY14 NDAA,202 each Service has 

individual standards to determine whether SVCs are qualified. These criteria are outlined in Table 3.2. 

Ultimately, all SVCs are selected by each Service’s Judge Advocate General/Staff Judge Advocate to the 

Commandant.

Table 3.2. Special Victims’ Counsel Selection Criteria

Service Criteria Military Justice 

Experience Required

SVC Tour 

Length

Army Personality, maturity, good judgment, listening 

ability, and personal courage; nominated by SJA; 

approved by TJAG

No; approximately 50% 

of current SVCs had 

previous military justice 

experience.

1–2 years

Air Force 8 selection criteria, including court-martial and 

litigation experience, leadership qualities, and 

desire to serve as SVC; nomination process through 

multiple levels of AF JAG leadership; selected by 

TJAG

Yes; must also be trial 

certified by TJAG after 

review by seasoned trial 

attorney and evaluation 

by a military judge and 

staff judge advocate.

Generally 2 

years

Navy Experience level, professional maturity, interpersonal 

skills, and desire to serve as SVC; seasoned JAG with 

preference for at least 3 completed tours, but have 

taken JAGs with 1 completed tour who had worked 

in military justice; candidates must be recommended 

for program and are interviewed by VLC Chief or 

Deputy Chief; approved by TJAG

Yes; preferably with 

experience on both 

prosecution and defense.

Not provided

200 10 U.S.C. § 1044e (2012).

201 See Air Force SVC Rules, supra note 198, at 11 (Rule 3); see also Army SVC Handbook, supra note 198, para. 3-5(c)).

202 These qualifications require a judge advocate or civilian attorney to (1) be a member of the bar of a federal court or of 

the highest court of a state, and (2) be certified as competent to be designated as an SVC by the Service’s Judge Advocate 

General. See FY14 NDAA, Pub. L. No. 113-66, § 1716(a), 127 Stat. 672 (2013) (referencing 10 U.S.C. § 1044(d)(2)).
51

III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

Marine 

Corps

Candidates are nominated for position; VLC 

Chief conducts review of nominee’s personnel 

file to determine military justice experience and 

temperament for the position; must satisfy DoD 

sensitive selection screening process and be certified 

by Navy TJAG

Regional VLCs must 

have 2 years of military 

justice experience; 

VLCs must have 

at least 6 months’ 

experience in military 

justice.

Generally 

18 months

Coast 

Guard

Selection based on combination of volunteers and 

normal assignment selection process; does not 

have special career tracks for SVCs; career history 

reviewed before assignment

No. 2–4 years

SOURCES: Services’ Responses to JPP Requests for Information 22(c), 25 (Nov. 6, 2014); Transcript of JPP Public Meeting

132–33 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, Program Manager, Special Victims’ Counsel 

Program); id. at 134–35 (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, Special Victims’ Counsel Division); 

id. at 131–32 (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, Chief of Staff, Victims’ Legal Counsel Program); id.

at 82–83 (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in Charge, Victims’ Legal Counsel Organization); id. 

at 112–13, 130 (testimony of CDR Ted Fowles, U.S. Coast Guard, Chief, Office of Special Victims’ Counsel); see also Policy 

Memorandum 14-01, Office of The Judge Advocate General, U.S. Army, subject: Special Victim Counsel, para. 5 (Nov. 1, 

2013), available at http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q20_USA.pdf.

The JPP heard from numerous presenters concerning the background and experience of SVCs, 

particularly on whether SVCs should be required to have previous military justice experience and, if 

so, how much prior experience is sufficient for them to effectively counsel victims.203 As noted in Table 

3.2, each of the Services, other than the Army and Coast Guard, requires some level of military justice 

experience of SVCs, although the minimum varies considerably (from just six months to two years).204

Despite the lack of an explicit requirement, the Army SVC Program Chief reported that more than 

50% of the Army’s current SVC cadre had prior military justice experience before serving as an SVC.205

Some presenters told the JPP that for some SVCs, their lack of military justice experience hindered 

their ability to effectively represent victims.206 For instance, one criminal investigator noted that SVCs 

without experience in investigations and trial processes don’t always understand the harm that delays 

in responding to requests may do to time-sensitive investigations.207 When an investigator needs a 

203 See generally Transcript of JPP Public Meeting 129–30 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine 

Corps, Officer in Charge, Victims’ Legal Counsel Organization); id. at 131–32 (testimony of CAPT Karen FischerAnderson, U.S. Navy, Chief of Staff, Victims’ Legal Counsel Program); id. at 132–34 (testimony of COL James Robert 

McKee, U.S. Army, Program Manager, Special Victims’ Counsel Program); id. at 134–36 (testimony of Lt Col Andrea M. 

deCamara, U.S. Air Force, Chief, Special Victims’ Counsel Division).

204 See Transcript of JPP Public Meeting 82 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer 

in Charge, Victims’ Legal Counsel Organization); id. at 131–32 (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, 

Chief of Staff, Victims’ Legal Counsel Program); id. at 355 (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense 

Counsel).

205 Transcript of JPP Public Meeting 132–33 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, Program 

Manager, Special Victims’ Counsel Program).

206 See generally Transcript of JPP Public Meeting 318 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, 

U.S. Army Criminal Investigative Command (CID)); id. at 344–47(testimony of CPT Sarah Robbins, U.S. Army, Trial 

Defense Counsel); id. at 353–54 (testimony of Maj Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel); id. at 354–55 

(testimony of LCDR Nate Gross, U.S. Navy, Senior Defense Counsel); id. at 355–56 (testimony of MAJ William Babor, 

U.S. Air Force, Senior Defense Counsel).

207 See generally Transcript of JPP Public Meeting 280 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, 
52

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

victim to contact the alleged assailant to attempt to elicit incriminating statements in what is known 

as a pretext communication, or seeks perishable evidence on cell phones, an SVC who does not fully 

appreciate the value of such evidence at trial may unintentionally hurt the case in his or her zeal to 

“protect” a victim.208 And an Army defense counsel described recent instances of unnecessary delays 

caused by two different SVCs, both of whom lacked military justice experience and did not understand 

trial practice fundamentals, client representation, and the scope of attorney-client privilege in military 

courts.209

Despite the clear benefits of previous military justice experience, one presenter also described the 

practical difficulty that requiring such experience would pose for the Services. The Army SVC Program 

Chief told the JPP that such a requirement for SVCs, while good in theory, would be unfeasible given 

the current size of the force and global distribution of its Service members.210

Presenters also told the JPP that some Services do not require prior military justice experience for 

military defense counsel, indicating that lack of trial experience among counsel who are involved in 

courts-martial may be a problem affecting the entire military justice system rather than just the SVC 

program.211 Presenters noted an inequity that might result from requiring more experience of victims’ 

counsel than of the counsel for the accused Service member.212

The JPP believes that counsel appointed to serve as SVCs need adequate criminal justice experience to 

ensure their competence to represent the rights and interests of their clients. Prosecutors and defense 

counsel told the JPP that dealing with SVCs who lack criminal justice experience would be difficult 

because they would not have the experience to make the best calls at the right time. While military 

justice experience is desirable, prior civilian criminal justice experience may be sufficient to give an 

SVC the familiarity with constitutional and other legal issues needed to provide suitable representation. 

This recommendation expands on a similar recommendation from the Response Systems Panel, 

subsequently adopted by DoD, that SVCs have “appropriate trial experience, whenever possible, prior 

to being selected as special victims’ counsel.”213

U.S. Army Criminal Investigative Command (CID)); id. at 268 (testimony of Mr. Mike Defamio, Supervisory Special 

Agent, U.S. Navy Criminal Investigative Service (NCIS)); id. at 282 (testimony of Mr. Mark Walker, Special Agent, U.S. 

Air Force Office of Special Investigations (AFOSI)).

208 Transcript of JPP Public Meeting 260 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, U.S. Army 

Criminal Investigative Command (CID)).

209 Transcript of JPP Public Meeting 344 (Nov. 14, 2014) (testimony of CPT Sarah Robbins, U.S. Army, Trial Defense 

Counsel).

210 Transcript of JPP Public Meeting 133–34 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, Program 

Manager, Special Victims’ Counsel Program).

211 Transcript of JPP Public Meeting 353–54 (Nov. 14, 2014) (testimony of Maj Kyle R. Kilian, U.S. Marine Corps, Senior 

Defense Counsel).

212 See generally Transcript of JPP Public Meeting 353–54 (Nov. 14, 2014) (testimony of Maj Kyle Kilian, U.S. Marine Corps, 

Senior Defense Counsel); id. at 354–55 (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense Counsel); id. at 355–

56 (testimony of MAJ William Babor, U.S. Air Force, Senior Defense Counsel).

213 RSP Recommendation 47 states that the Secretary of Defense “direct the Services to implement additional selection criteria 

for their individual Special Victims’ Counsel programs to require that counsel have appropriate trial experience whenever 

possible, prior to being selected as special victims’ counsel. RSP Report, supra note 3, at 26. RSP Recommendation 47 was 

subsequently accepted by the Department of Defense. DoD RSP Implementation Memo, supra note 3, at 4.
53

III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

The military system is not well served by inexperienced SVCs. For SVC programs to succeed, leaders 

and others in the military Services must be confident that SVCs help victims and improve the justice 

system. Requiring SVCs to have adequate experience is essential to that success. 

C. SPECIAL VICTIMS’ COUNSEL TRAINING

The FY14 NDAA requires all counsel who provide legal assistance to support victims of alleged sexrelated offenses to receive “in-depth and advanced training.”214 The statute does not specify when such 

training must occur, although each Service requires judge advocates to successfully complete specialized 

training either before, or as soon as practicable after, assignment to SVC duties.215

SVC program managers told the JPP that the Services attempt to select new special victims’ counsel 

far enough in advance that they can receive training before assuming their duties.216 These efforts are 

not always successful, however. Among the Armed Forces, only the Coast Guard reported any SVCs 

currently serving who have not yet attended specialized training.217 The Navy and Marine Corps stated 

that experienced regional victims’ legal counsel supervise any individual who has not received training 

prior to assignment as a VLC.218 The Navy reported that to date, all VLCs have received training either 

before or within 90 days of assuming VLC duties.219 The Army does not authorize SVCs to take clients 

until they have received SVC training.220 Even though the Air Force requires SVC training “as soon 

as practicable” after assignment, all Air Force judge advocates serving as SVCs since the program’s 

inception have had specialized training before representing clients.221

DoD does not prescribe a standard curriculum or duration for SVC training courses. Instead, each 

Service sets its own requirements.222 The Air Force, Army, and Navy have each established SVC 

training courses at their respective Judge Advocate General’s schools. They range from two to five days 

in length and cover the areas of neurobiology of trauma, ethics, military justice, victim privacy, legal 

representation of victims, and Military Rules of Evidence, as well as advocacy exercises.223 Outside 

214 FY14 NDAA, Pub. L. No. 113-66, § 1716(b), 127 Stat. 672 (2013).

215 See Services’ Responses to JPP Requests for Information 19(g), 28(c) (Nov. 6, 2014). Note: The Army requires that all 

SVCs receive training prior to taking clients.

216 See Transcript of JPP Public Meeting 136 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer 

in Charge, Victims’ Legal Counsel Organization); id. at 135 (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, 

Chief, Special Victims’ Counsel Division).

217 Coast Guard’s Response to JPP Request for Information 28(b) (Nov. 6, 2014) (noting that the three Coast Guard SVCs all 

have prior military justice experience).

218 Navy’s and Marine Corps’ Responses to JPP Request for Information 28(c) (Nov. 6, 2014) (including Navy’s VLC 

Certification Policy, Enclosure 23).

219 Navy’s Response to JPP Request for Information 28(d) (Nov. 6, 2014); see also Army SVC Handbook, supra note 198, ch. 

8-2 (SVC Training).

220 Army’s Response to JPP Request for Information 28(d) (Nov. 6, 2014).

221 Air Force’s Response to JPP Request for Information 28(c) (Nov. 6, 2014).

222 See Air Force’s Response to JPP Request for Information 19(h) (Nov. 6, 2014) (referencing Attachment 19.8, SVC Course 

Master Curriculum Plan). The Air Force Judge Advocate General’s School developed the first SVC course curriculum 

plan in December 2012 for a three-day course offered at the Air Force Judge Advocate General’s School at Maxwell AFB, 

Montgomery, Alabama. 

223 See Air Force’s Response to JPP Request for Information 19(h) (Nov. 6, 2014). To date, the Air Force has hosted four 

week-long SVC courses and five intermediate sexual assault litigation courses. Air Force’s Response to JPP Request for 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

experts participate as instructors in all of the Services’ SVC courses.224 The most recent Army SVC 

course included instruction by Air Force and Marine Corps judge advocates in addition to Army 

criminal law instructors, an Army investigator, a civilian Army nurse who is a forensic examiner in 

sexual assault cases, experienced SVCs, and actual victim clients.225 The Marine Corps sends its VLCs 

to initial training at the courses offered by the Air Force, Army, and Navy, supplemented by its own 

annual two-day organization-wide VLC training event.226 The Coast Guard does not offer its own 

training course and, like the Marine Corps, sends its SVCs to attend the courses offered by the other 

Services.227

In August 2014, JPP member Victor Stone attended four of the five days of the Army’s SVC training 

course at the Army JAG School in Charlottesville, Virginia.228 In his subsequent report to the full JPP, 

he assessed the technical training as comprehensive, and he noted no concerns with the curriculum 

or instruction. However, he felt that the experiences shared by several of the presenters during the 

course raised some serious issues regarding implementation of the SVC program.229 Most of those 

issues are addressed elsewhere in this report; they include failure to notify victims about access to SVCs 

early enough in the process, failure to give SVCs notice of and access to pleadings and other relevant 

information needed to represent their clients, a lack of procedural rules, and unauthorized release of 

mental health records to military investigators and trial and defense counsel.230

The Army, Air Force, and Navy indicated that they will offer SVC training courses in 2015, and the 

Marine Corps will host an annual organization-wide training event.231 The Army will hold two SVC 

training courses, two SVC continuing education courses, two child-victim courses, and one advanced 

child-victim training course in 2015; representatives of the other Services will be invited to attend.232

Information 29 (Nov. 6, 2014). In addition to the formal course, Air Force SVC training is continuously supplemented 

through internal training and other formal courses within the Air Force (Air Force’s Response to JPP Request for 

Information 19(g) (Nov. 6, 2014)); the Army has held three week-long SVC training courses and one online course (Army’s 

Response to JPP Request for Information 29 (Nov. 6, 2014)); the Navy has offered one two-day VLC course and holds 

regular group training via video teleconferencing (Navy’s Response to JPP Request for Information 19(g) (Nov. 6, 2014)). 

The Navy also takes advantage of courses offered by the other Services when the timing of those courses is more beneficial 

to new VLC personnel. Navy’s Response to JPP Request for Information 29 (Nov. 6, 2014).

224 See Navy’s Response to JPP Request for Information 19(h) (Nov. 6, 2014) (referencing Air Force SVC training course 

curriculum for Oct. 15–18, 2013 training and Navy VLC training course curriculum from its Jan. 15-16 training course—

both of which included instruction by Ms. Meg Garvin, Executive Director, National Crime Victim Law Institute, and 

Dr. Rebecca Campbell, expert on the neurobiology of trauma, from Michigan State University—and Army SVC course 

curriculum for its Aug. 18–22 training that included Dr. Kim Lonsway, Director of Research, End Violence Against 

Women International (EVAWI)).

225 See Army’s Responses to JPP Requests for Information 29, 30 (Nov. 6, 2014).

226 Marine Corps’ Response to JPP Request for Information 29 (Nov. 6, 2014).

227 Coast Guard’s Response to JPP Request for Information 29 (Nov. 6, 2014).

228 See Victor Stone, “U.S. Army Training Course, TJAGLCS, Charlottesville, VA, August 18–22, 2014: Trip Report of Mr. 

Victor Stone, Judicial Proceedings Panel Member,” available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/04-SVC_

VictimAccess/20141114/13_ArmySVC_Course_TripReport_Stone.pdf; see also Transcript of JPP Public Meeting 244-57 

(Nov. 14, 2014) (testimony of Mr. Stone).

229 Id.

230 Id. For further discussion of the issues raised, see Section III(F), Notification of the Availability of Legal Assistance and 

the Scope of Representation; Section IV(B), Victims’ Notice and Access to Information; and Section V(C), Military Rule of 

Evidence 513 (Psychotherapist-Patient Privilege), infra.

231 See Services’ Responses to JPP Request for Information 30 (Nov. 6, 2014).

232 See Army’s Response to JPP Request for Information 30 (Nov. 6, 2014).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

The Air Force plans to offer two SVC courses and will hold week-long intermediate sexual assault 

litigation courses at various base locations in 2015.233 In addition, the Air Force Judge Advocate 

General’s School periodically offers webcasts and distance education modules, available to all judge 

advocates and paralegals, on sexual assault topics.234 The Air Force invites participants from the other 

Services for its training courses when seats are available.235 The Navy indicated that it expects to hold 

at least one VLC course each year and will continue to take advantage of courses offered by the Army 

and Air Force.236 The Marine Corps plans to continue to host one organization-wide training event 

annually and to send its VLCs to training events hosted by other Services.237 The Coast Guard does not 

plan to host its own SVC course and will continue to send Coast Guard SVCs to the other Services’ 

courses.238

In addition to their own military-focused courses, the Services told the JPP that many SVCs have also 

attended civilian courses and conferences to learn about victim privacy litigation and victims’ rights.239

The Air Force, Navy, Marine Corps, and Coast Guard sent SVCs to attend the National Crime 

Victims’ Law Institute’s week-long Crime Victims’ Law course in Portland, Oregon, in June 2014.240

Most of the Services indicated that they also sent SVCs to attend conferences on child sexual assault 

and trauma.241

While agreeing that current SVC training is sufficient, the JPP is concerned about how it will be 

maintained in the future. DoD has no program in place to assess training quality, which is a significant 

concern. In addition, the JPP recommends that DoD develop a policy to standardize both the time 

frame within which SVCs receive training, to ensure that newly assigned SVCs are sufficiently prepared 

for their duties, and the substantive training requirements. Newly assigned SVCs must be trained in 

advance to ensure that they are prepared for their duties. DoD should make certain that measures are 

in place to assess and monitor the quality and effectiveness of training. 

D. GEOGRAPHIC LOCATION AND SVC STAFFING

For reasons that range from workload requirements to personnel constraints,242 SVCs are not assigned 

to every military installation.243 As a result, clients seeking SVC support may be assigned to an SVC 

233 See id.

234 See id.

235 See id. Note: The Air Force held an SVC course specifically for the other Services in October 2013. Id.

236 See Navy’s Response to JPP Request for Information 30 (Nov. 6, 2014).

237 See Marine Corps’ Response to JPP Request for Information 30 (Nov. 6, 2014).

238 See Coast Guard’s Response to JPP Request for Information 30 (Nov. 6, 2014).

239 See Services’ Responses to JPP Request for Information 32 (Nov. 6, 2014).

240 See id.; see also Transcript of JPP Public Meeting 83 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine 

Corps, Officer in Charge, Victims’ Legal Counsel Organization).

241 See Services’ Responses to JPP Request for Information 32 (Nov. 6, 2014).

242 See Transcript of JPP Public Meeting 172 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel).

243 See Services’ Responses to JPP Request for Information 21(c) (Nov. 6, 2014) (showing that Army placed one or more SVCs 

at 37 installations; the Air Force staffed 10 regions, covering 25 installations; the Navy staffed 23 fleet locations with at 

least one SVC; the Marine Corps staffed 10 installations; and the Coast Guard maintains two full-time SVC offices with 

18 collateral-duty SVCs located at Coast Guard installations nationwide).
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located at a different base or installation than the client’s duty station.244 Under such circumstances, 

presenters told the JPP, SVCs have access to a variety of methods to communicate with clients, and 

SVCs currently have sufficient travel budgets to meet with clients in person when necessary.245

The Air Force SVC program is part of the Air Force Legal Operations Agency’s Community Legal 

Services Directorate, which oversees the provision of legal assistance to clients. The Air Force SVC 

program consists of a headquarters office for policy and management and three to five supervising 

judge advocates to cover the “worldwide mission and span of control issues given the number of Air 

Force personnel.” To determine the locations of SVC offices, the Air Force SVC program leadership 

assessed current client caseloads for each base, proximity to commercial transportation hubs, and 

historical military justice data.246 As a result of its continuing assessment and review, the Air Force 

is moving thirteen SVC offices to different locations to better meet the demand for the program.247

The Air Force also plans to increase the number of SVC offices from nineteen to twenty-five, housing 

a total of forty SVCs, by January 2015. Currently, ten paralegals support SVC offices at regional 

locations.248 The Air Force structures its SVC organization much like its area defense counsel program, 

with supervisory authority that does not include convening authorities or base legal offices.249

The Navy VLC program is part of the Naval Legal Service Command, which oversees all primary legal 

support missions, including legal assistance, defense counsel services, and government and trial counsel 

services. Like the Air Force, the Navy analyzed sexual assault reports and historical military justice 

data across its installations to determine the initial staffing and placement of its VLC offices. The Navy 

currently has five VLC regions and twenty-three offices at its installations in the United States and 

around the world.250 Navy VLC program leadership and Navy JAG Corps leadership told the JPP that 

they monitor actual demand to ensure that adequate numbers of SVCs are appropriately placed.251

Unlike the Air Force and Navy programs, whose SVC Program Chiefs report to their Service’s 

centralized directors of legal assistance programs, the Marine Corps VLC program is not aligned with 

the Service’s legal assistance mission, and the Marine Corps VLC Program Chief works directly for 

the Staff Judge Advocate to the Commandant of the Marine Corps.252 The Marine Corps currently 

has eleven VLC offices, which are staffed by seventeen judge advocates, one paralegal, and eight legal 

services specialists.253 The VLC program is structured into four regions—National Capital Region, 

244 See, e.g., Transcript of JPP Public Meeting 81 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, 

Officer in Charge, Victims’ Legal Counsel Organization).

245 Id.; id. at 112 (testimony of CDR Ted Fowles, U.S. Coast Guard, Chief, Office of Special Victims’ Counsel).

246 See Air Force’s Response to JPP Request for Information 21(d), 21(b) (Nov. 6, 2014).

247 See Air Force’s Response to JPP Request for Information 21(b) (Nov. 6, 2014). The JPP did not receive the data or reports 

utilized in this assessment. 

248 Air Force’s Response to JPP Request for Information 21(c) (Nov. 6, 2014).

249 See Air Force’s Response to JPP Request for Information 21(d) (Nov. 6, 2014). 

250 See Navy’s Responses to JPP Requests for Information 21(d), 21(b), 21(c) (Nov. 6, 2014).

251 See Navy’s Response to JPP Request for Information 21(b) (Nov. 6, 2014). The JPP did not receive the data or reports 

utilized in the initial or subsequent staffing analysis. 

252 See supra Table 3.1; Marine Corps’ Response to JPP Request for Information 21(d) (Nov. 6, 2014). Air Force SVC 

Program Chiefs report through the Air Force Community Services Legal Director (who oversees three divisions that 

provide legal assistance), to the Air Force Legal Operations Agency Commander. Navy VLC Program Chiefs report up 

through the VLC chain of command to the Commander of Naval Legal Service Command. 

253 See Marine Corps’ Response to JPP Request for Information 21(c) (Nov. 6, 2014). In addition to the 15 active duty VLCs, 

the Marine Corps has one reserve VLC on one-year active duty orders, one civilian paralegal, eight enlisted legal service 
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

Eastern (US) Region, Western (US) Region, and Pacific Region—with one supervisory VLC assigned 

to each. The Marine Corps VLC organization was originally established by VLC program leadership 

to meet anticipated demand, and the Marine Corps indicated that the demand and requirements for 

additional VLC positions will continue to be evaluated.254

As in the Marine Corps, the Coast Guard SVC Program Chief reports directly to the Coast Guard 

Deputy Judge Advocate General. Because of its small size, the Coast Guard established two SVC 

offices, one on the East Coast (in Arlington, Virginia) and the other on the West Coast (in Alameda, 

California). The Coast Guard is monitoring the total number of pending sexual assault cases and 

total number of victims receiving SVC support, and its goal is to keep individual SVC caseloads from 

exceeding thirty-five clients.255

Unlike the other Services, the Army did not establish a separate stovepiped chain of command for 

SVCs and does not designate judge advocates to serve solely as SVCs. Instead, SVC services in the 

Army are provided through its legal assistance offices, where judge advocates assist soldiers with 

personal legal matters and adverse personnel actions, such as letters of reprimand, negative evaluation 

reports, or other actions taken against the soldier by the command.256 In the Army, legal assistance 

attorneys provide service to individual clients on confidential matters and routinely establish attorneyclient relationships.257 In the other military Services, by contrast, legal offices provide legal assistance 

as an additional duty, but do not work with clients on adverse personnel actions, such as unfavorable 

evaluations or administrative reprimands, which are instead referred to designated defense counsel.258

 According to the Army’s decentralized model, each installation’s SJA, in consultation with the SVC 

Program Chief, determines the number of SVCs that are required for his or her installation. Army 

SVCs are supervised and supported locally by the Chief of Legal Assistance and the SJA, and they also 

receive support and technical oversight from the Legal Assistance Policy Division and the SVC Program 

Chief. Currently, thirty-seven active duty Army SJA offices provide SVC services worldwide.259

Irrespective of the organizational model, the JPP heard from multiple presenters that the physical 

separation between SVCs and their clients raised concerns across all Services. A sexual assault response 

coordinator (SARC) told the JPP that initial investigative interviews are commonly delayed because 

specialists, two auxiliary VLCs, and two drilling reserve VLCs. Id.

254 See Navy’s Responses to JPP Requests for Information 21(c), 21(b) (Nov. 6, 2014). The JPP did not receive further detail 

or the data utilized to determine initial or subsequent anticipated demand. 

255 See Coast Guard’s Responses to JPP Requests for Information 21(d), 21(b) (Nov. 6, 2014).

256 U.S. Dep’t of Army, Reg. 27-3, Army Legal Assistance Program ch. 3-6g(4) (Sept. 13, 2011) (stating that legal 

assistance attorneys provide services to clients for military administrative matters such as line of duty investigations, IG 

investigations, physical evaluation boards, medical evaluation boards, and letters of reprimand), available at http://www.

apd.army.mil/pdffiles/r27_3.pdf.

257 See Transcript of JPP Public Meeting 66–67 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, 

Program Manager, Special Victims’ Counsel Program).

258 See U.S. Dep’t of Air Force, Instr. 51-504, Legal Assistance, Notary, and Preventive Law Programs ch. 1.7.2-3 (Jan. 24, 

2013) (providing that matters involving adverse action under UCMJ or adverse administrative action are to be referred 

to appropriate military defense counsel), available at http://static.e-publishing.af.mil/production/1/af_a3_5/publication/

afi51-504/afi51-504.pdf; U.S. Dep’t of Navy, JAG Instr. 5801.2B, Navy Legal Assistance Program 6-2b (Feb. 15, 2013) 

(prohibiting legal assistance attorneys from representing a victim at administrative or criminal forum with respect to 

victim’s rights and requiring that such matters be referred to appropriate defense office, Formal Physical Evaluation Board 

counsel, or a private attorney), available at http://www.jag.navy.mil/library/instructions/5801_2b.pdf.

259 Army’s Responses to JPP Requests for Information 21(b), 21(c) (Nov. 6, 2014).
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

geographically separated SVCs typically want to speak with a client before the client meets with 

investigators.260 The SARC also described delays in case management group meetings,261 including 

one meeting that involved participation by four SVCs at four different locations.262 She recommended 

that SVCs should be assigned to every installation.263 Another SARC felt that her Service did not have 

enough SVCs and that SVC-client consultations via telephone were very impersonal.264 Finally, a SARC 

described a case involving one victim who obtained a local SVC and a second victim who was assigned 

an SVC from a different location; she observed that the local SVC was far more engaged in the case.265

An SVC explained to the JPP that remote discussions with clients may also pose confidentiality 

concerns. He described an investigation in which the government sought his client’s cellular phone as 

evidence. The cell phone also contained text messages between the SVC and his client—and while he 

was able to work with the government to wall off those communications, the issue would not have 

arisen if he were meeting face-to-face with his client rather than communicating electronically.266

Whether the SVC is placed within a convening authority’s chain of command or in an organization 

independent of the convening authority, the JPP believes that an SVC’s ability to represent a client’s 

interest free from command influence is of utmost importance. SVCs must be allowed to advocate 

candidly and forthrightly on behalf of their clients to the maximum extent possible, including placing 

their clients’ priorities above those of the Service, without fear of harm to their career, retribution, or 

retaliation. Before making a recommendation as to whether one reporting structure is preferable to 

another, the JPP will request additional information from the Services asking for the rationale for their 

program’s structure as well as for details about what, if any, safeguards are in place to protect SVCs 

when their client’s interest runs contrary to the interests of the command or unit. 

The JPP is cognizant of practical constraints, including monetary and logistical limitations, that 

must be considered when determining the number and locations of SVC offices. While having SVCs 

geographically separated from their clients is not ideal, the JPP commends the Services for using 

other resources to resolve or minimize issues caused by the separation between SVCs and clients. The 

JPP encourages them to continue to implement inventive and efficient ways to address the situation. 

The JPP also recognizes that several of the Services are performing regular reevaluations of how 

SVC resources are distributed and recommends that all Services continue this effort. Above all, the 

260 Transcript of JPP Public Meeting 50–52 (Dec. 12, 2014) (testimony of Ms. Phylista Dudzinski, Sexual Assault Response 

Coordinator, U.S. Air Force).

261 See U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures encl. 9 (Feb. 

12, 2014) (providing that Case Management Groups shall be chaired by Installation Commander and SARC, convening 

on monthly basis to review individual cases from unrestricted reports, direct system coordination, and victim access to 

quality services), available at http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf. Members include the victim’s 

commander, all SARCs on the installation, the Victim Advocate, health care provider or counselor, chaplain, and legal 

representative for the victim, Victim Witness Assistance Program representative, criminal investigator, and SJA office 

representative to provide the case disposition. Id.

262 Transcript of JPP Public Meeting 50–52 (Dec. 12, 2014) (testimony of Ms. Phylista Dudzinski, Sexual Assault Response 

Coordinator, U.S. Air Force).

263 Id. 

264 Transcript of JPP Public Meeting 54–55 (Dec. 12, 2014) (testimony of Ms. Simone Hall, Sexual Assault Response 

Coordinator, U.S. Coast Guard).

265 Transcript of JPP Public Meeting 76–77 (Dec. 12, 2014) (testimony of SFC Bridgett Joseph, U.S. Army, Sexual Assault 

Response Coordinator).

266 Transcript of JPP Public Meeting 224 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

JPP encourages the Services to place SVCs in as many locations as feasible in order to maximize the 

opportunity for face-to-face interactions between SVCs and clients, and to develop effective means for 

SVCs to communicate with clients when face-to-face communication is not possible. 

E. VICTIM ELIGIBILITY REQUIREMENTS

Title 10, Section 1044e, of the United States Code requires each Service to designate SVCs to provide 

services to individuals eligible for military legal assistance who are victims of alleged sex-related 

offenses.267 Section 1044 of Title 10 establishes that the following individuals are eligible for legal 

assistance, and therefore for SVC representation: 

• active duty Service members and their dependents; 

• Reserve and National Guard members when on active duty or inactive training duty and their 

dependents; 

• retired Service members and their dependents; and 

• certain civilians overseas.268

This statutory guidance defines those who are entitled to legal assistance, although the Secretary 

concerned also has inherent authority to make others eligible based on resources and availability. 

Federal civilian employees, contractors, divorced spouses, family members who are not dependents of 

a military member, or other civilian victims who have been sexually assaulted by active duty Service 

members may not be eligible for SVC services, because providing legal assistance to them is not 

mandatory.269 In incidents with multiple victims, Section 1044’s eligibility restrictions may preclude 

some victims from receiving SVC support while ensuring support for others involved in the same case.

The Navy VLC Program Chief told the JPP that Navy policy originally followed the Section 1044 

eligibility criteria. However, the Navy has broadened its interpretation of eligibility “such that 

Reservists are now treated similarly to active duty personnel and there is no longer a military 

nexus required nor do they have to be on orders.”270 Marine Corps VLCs follow the Section 1044 

requirements, but the Marine Corps VLC Program Chief noted that updates to Marine Corps 

regulations have allowed them to “open the door to eligibility a little bit more and not stay within 

the four corners of the 1044 statute,” particularly with respect to overseas civilians.271 The Army, Air 

Force, and Coast Guard indicated that their Services follow Section 1044 more strictly, and all require 

a military nexus to provide support for sexual assault offenses.272

267 10 U.S.C. § 1044e(a) (2012) (Designation; Purposes) (“The Secretary concerned shall designate legal counsel (to be known 

as ‘Special Victims’ Counsel’) for the purpose of providing legal assistance to an individual eligible for military legal 

assistance under section 1044 of this title who is the victim of an alleged sex-related offense, regardless of whether the 

report of that offense is restricted or unrestricted.”).

268 Id.

269 See Transcript of JPP Public Meeting 147–51 (Nov. 14, 2014) (testimony of each Service Program Manager in response to 

question from Panel Member regarding eligibility criteria for SVC services).

270 Transcript of JPP Public Meeting 147–48 (Nov. 14, 2014) (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, Chief 

of Staff, Victims’ Legal Counsel Program).

271 Transcript of JPP Public Meeting 149 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in 

Charge, Victims’ Legal Counsel Organization).

272 See Transcript of JPP Public Meeting 138, 148–49 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, 

Program Manager, Special Victims’ Counsel Program); id. at 149 (testimony of Col Carol K. Joyce, U.S. Marine Corps, 
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In addition to differences among the Services in their interpretations of who is eligible, one Service also 

described a different application of the statute regarding which crimes create SVC eligibility. Section 

1044e requires legal counsel to be designated for victims of “an alleged sex-related offense,”273 which 

is further defined as any allegation of a violation or attempted violation of Articles 120, 120a, 120b, 

120c, or 125 of the UCMJ.274 Although the statute specifies that counsel must be made available for 

these enumerated offenses, no language in it prohibits SVCs from representing clients who are victims 

of other offenses. While the Army, Navy, Air Force, and Coast Guard limit SVC representation to 

victims of sexual assault offenses, the Marine Corps has elected to make SVC representation available 

to victims eligible for “legal assistance” for all crimes.275

Currently, there is not sufficient data to evaluate the possible impact on resources of expanding SVC 

eligibility to additional victims or for additional crimes in the other Services. To assess demand for 

expanded eligibility, the Air Force SVC program is now tracking the number of victims who request 

an SVC but are determined not to be eligible for SVC services. However, the Air Force SVC Program 

Chief noted that these data may not fully reflect actual demand, because they do not include requests 

made to other offices or individuals, such as requests by victims to SARCs or investigators.276

As an initial observation, the JPP is concerned that the statutory basis creating eligibility for SVC 

services is tied to eligibility for legal assistance services. This requirement precludes the program from 

supporting all victims of sexual assault perpetrated by Service members, because many such individuals 

are not eligible for legal assistance under the statute. The JPP intends to review additional information 

about victim demographics and SVC eligibility requirements before providing its full assessment and 

recommendations.

F. NOTIFICATION OF THE AVAILABILITY OF LEGAL ASSISTANCE AND THE 

SCOPE OF REPRESENTATION

Regardless of whether a victim intends to make a restricted (i.e., confidential) or unrestricted initial 

report, eligible victims of sexual offenses must be advised that legal assistance services are available.277

10 U.S.C. § 1565b(a)(2) requires that a victim be informed of his or her eligibility for legal assistance 

when “seek[ing] assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim 

Advocate, a military criminal investigator, a victim/witness liaison, or a trial counsel.”278 Although the 

Officer in Charge, Victims’ Legal Counsel Organization); id. at 150 (testimony of Lt Col Andrea M. deCamara, U.S. Air 

Force, Chief, Special Victims’ Counsel Division); id. at 150 (testimony of CDR Ted Fowles, U.S. Coast Guard, Chief, 

Office of Special Victims’ Counsel).

273 10 U.S.C. § 1044e(a) (2012). The statute provides legal counsel for sex-related offenses.

274 10 U.S.C. § 1044e(g) (2012) (Alleged Sex-related Offense Defined) (“In this section, the term ‘alleged sex-related offense’ 

means any allegation of (1) a violation of section 920, 920a, 920b, 920c, or 925 of this title (article 120, 120a, 120b, 

120c, or 125 of the Uniform Code of Military Justice); or (2) an attempt to commit an offense specified in a paragraph (1) 

as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).”).

275 Transcript of JPP Public Meeting 78 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in 

Charge, Victims’ Legal Counsel Organization).

276 Transcript of JPP Public Meeting 51–55 (Nov. 14, 2014) (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, 

Special Victims’ Counsel Division). 

277 U.S. Dep’t of Def., Form 2910, Victim Reporting Preference Statement (June 2014), available at http://www.dtic.mil/whs/

directives/forms/eforms/dd2910.pdf.

278 Section 1565b(a)(2) states: “A member of the armed forces or dependent who is the victim of sexual assault shall be 

informed of the availability of assistance under paragraph (1) as soon as the member or dependent seeks assistance from a 
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

statute makes clear that victims of sexual assault must be informed of the services available, presenters 

expressed different views about the timing of such notification, especially if the victim was already 

informed that the services are available when making the initial report.279

The JPP heard that in practice, SARCs and victim advocates (VAs) provide information about SVC 

representation before victims choose what type of report they wish to make.280 Trial counsel and 

military criminal investigators also must make victims aware of the availability of legal assistance 

counsel, but the Services, following guidance and common practices, meet this requirement at different 

stages of the criminal process.281

Investigators from the Army Criminal Investigation Command and Naval Criminal Investigative 

Service told the JPP that they inform victims about SVC assistance before an investigator’s interview 

begins.282 However, a special investigator from the Air Force Office of Special Investigations said 

that his organization interprets the statute to require that investigators inform victims of the option 

to consult with an SVC only at some point during the interview, not necessarily at the outset.283 The 

Air Force investigator explained that determining when to notify victims about their eligibility for 

SVC representation is a case-by-case decision “based on the issues in how it came to us, the flow of 

information, the structure of how that occurred.”284 The agent affirmed that this right is “something 

that we discuss during the interview. And we say that as [sic] it’s available and not necessarily a 

right.”285

Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness 

liaison, or a trial counsel. The member or dependent shall also be informed that the legal assistance and the services of a 

Sexual Assault Response Coordinator or a Sexual Assault Victim Advocate under paragraph (1) are optional and may be 

declined, in whole or in part, at any time.” 10 U.S.C. § 1565b(a)(2) (2012).

279 See Transcript of JPP Public Meeting 264–65, 271–72 (Nov. 14, 2014) (testimony of Mr. Mark Walker, Special Agent, U.S. 

Air Force Office of Special Investigations (AFOSI)).

280 See 10 U.S.C. § 1565b (2012); see also Transcript of JPP Public Meeting 49 (Dec. 12, 2014) (testimony of Ms. Phylista 

Dudzinski, Sexual Assault Response Coordinator, U.S. Air Force); id. at 57 (testimony of Ms. Marie A. Brodie, Sexual 

Assault Response Coordinator, U.S. Marine Corps).

281 See Transcript of JPP Public Meeting 259, 264–65, 271–75 (Nov. 14, 2014) (testimony of Mr. Mark Walker, Special 

Agent, U.S. Air Force Office of Special Investigations (AFOSI)); id. at 271–75 (testimony of Mr. James W. Boerner, Special 

Agent, U.S. Army Criminal Investigative Command (CID)). 

282 Transcript of JPP Public Meeting 271 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, U.S. Army 

Criminal Investigative Command (CID)); id. at 268 (testimony of Mr. Mike Defamio, Supervisory Special Agent, U.S. 

Naval Criminal Investigative Service (NCIS)); see also FY14 NDAA, Pub. L. No. 113-66, § 1716(a)(1), 127 Stat. 672 

(2013) (inserting 10 U.S.C. § 1044e(f)); U.S. Dep’t of Def., Instr. 5505.18, Investigation of Adult Sexual Assault in the

Department of Defense encl. 2.11 (May 1, 2013) (requiring an MCIO investigator assigned to conduct an adult sexual 

assault investigation to inform a sexual assault victim of availability of legal assistance and services of a SARC or VA in 

accordance with Section 581 of FY12 NDAA), available at http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf. 

Note: DoDI 5505.18 is not updated to reflect implementation of the SVC programs. See also U.S. Dep’t of Def., Instr. 

6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures encl. 2, para. 6(m) (Feb. 12, 2014) 

(requiring Service Secretaries to “[e]stablish procedures that require, upon seeking assistance from a SARC, SAPR VA, 

MCIO, the Victim Witness Assistance Program (VWAP), or trial counsel, that each Service member who reports that he 

or she has been a victim of a sexual assault be informed of and given the opportunity to . . . [c]onsult with legal assistance 

counsel, and in cases where the victim may have been involved in collateral misconduct . . . , to consult with defense 

counsel”).

283 Transcript of JPP Public Meeting 282 (Nov. 14, 2014) (testimony of Mr. Mark Walker, Special Agent, U.S. Air Force 

Office of Special Investigations (AFOSI)).

284 Id. at 272. 

285 Id. at 274. 
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The Program Chief from the Marine Corps told the JPP that this notification requirement should be 

clarified. In her view, the statute creates a right that “should mean that no victim should be asked to 

sign any document or make any decisions, should they elect to want to talk to an SVC or VLC.”286

Once a victim seeks the assistance of an SVC, 10 U.S.C. § 1044e(b) outlines the SVC’s scope of 

representation for his or her client. SVCs told the JPP that they understand their roles in explaining 

victim rights and the process to clients, assisting them with issues in military criminal proceedings that 

result from their complaint, and assisting them in seeking other help such as mental health services 

or counseling.287 But they are less sure about how and when they may represent a client in matters 

involving any possible misconduct, such as underage drinking, curfew infractions, or orders violations, 

that may be associated with the sexual assault incident.288

10 U.S.C. § 1044e provides that legal consultation regarding collateral misconduct by a victim extends 

to discussing “the victim’s right to seek military defense services.” SVC program policies in the 

Army, Air Force, and Marine Corps direct SVCs to refer victims who may be subject to disciplinary 

action related to the sexual offense to military defense counsel.289 Army policy further specifies that 

only military defense counsel will handle matters of victim misconduct, regardless of their severity 

or disposition. In contrast, policies of the Navy, Marine Corps, and Coast Guard authorize SVCs to 

engage in limited advocacy on behalf of a client who is alleged to have committed minor misconduct, 

although they make clear that only military defense counsel can represent the client if the misconduct 

can lead to involuntary separation or court-martial.290 The Air Force permits a victim client to choose 

between his or her defense counsel or special victims’ counsel (or keep both) after consulting with 

a military defense counsel about any collateral misconduct.291 Finally, Army, Air Force, and Marine 

286 Transcript of JPP Public Meeting 90–91 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in 

Charge, Victims’ Legal Counsel Organization). 

287 Section 1044e(b)(1) states: Legal consultation regarding potential criminal liability of the victim stemming from or in 

relation to the circumstances surrounding the alleged sex-related offense and the victim’s right to seek military defense

Services.” 10 U.S.C. § 1044e(b)(1) (2012) (emphasis added).

288 See Transcript of JPP Public Meeting 194–98 (Nov. 14, 2014) (testimony of CPT Jesse S. Sommer, U.S. Army, Special 

Victims’ Counsel) (discussing how he works with trial counsel and command regarding collateral misconduct); id. at 

199–201 (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ Counsel) (suggesting that SVCs could benefit 

from clearer rules on engaging on clients’ behalf with respect to collateral misconduct); see also U.S. Marine Corps, 

Order P5800.16A, Marine Corps Manual for Legal Administration para. 6004.4 (Feb. 10, 2014) (“If a victim appears 

to have committed collateral misconduct related to the crime of which he or she is a victim, the VLC may advise the 

victim on his or her legal options, including seeking testimonial or transactional immunity. Victims may be referred to the 

Marine Corps Defense Services Organization to consult with a defense counsel as appropriate for misconduct committed 

that may require defense counsel services.”), available at http://www.marines.mil/Portals/59/MCO%20P5800.16A%20

W%20CH%201-7.pdf; Coast Guard’s Response to JPP Request for Information 19(a) (Nov. 6, 2014), att. 10 (“United 

States Coast Guard Special Victims’ Counsel Program EOC Concept of Operations”) para. 10.3a (SVC Responsibilities) 

(“Consultation regarding potential criminal liability of the victim stemming from or in relation to the circumstances 

surrounding the alleged sex-related offense and the victim’s right to seek military defense services. While SVCs will not 

undertake activities to represent the victim with respect to collateral misconduct because they are not detailed defense 

counsel but will facilitate interaction with Defense Service Offices. OSVC will consider exceptions in coordination with 

CG-094M.”).

289 See Army’s and Air Force’s Responses to JPP Request for Information 19(b) (Nov. 6, 2014); Army SVC Handbook, supra

note 198, ch. 5-1; Air Force SVC Rules, supra note 198, at 16 (Rule 5.2).

290 See Services’ Responses to JPP Request for Information 19 (Nov. 6, 2014).

291 See Air Force’s Response to JPP Request for Information 19 (Nov. 6, 2014); see also id., att. 19.3 (“Sample Special 

Victims’ Counsel Scope of Representation Letter”).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

Corps SVCs told the JPP that they are able to negotiate with the command for immunity from 

disciplinary action for their clients’ minor collateral misconduct.292

Practitioners expressed varied views to the JPP regarding these policies. A victims’ rights advocate 

told the JPP that SVCs were severely restricted in representing their clients in adversarial or criminal 

proceedings, as well as in helping victims to initiate complaints to the inspector general and 

Congress.293 A number of SVCs discussed ways in which they could work more effectively with clients 

and better coordinate clients’ participation in investigations or judicial proceedings if rules more 

clearly allowed SVCs to address clients’ collateral misconduct. SVCs explained that they primarily 

advise clients regarding the potential consequences of different courses of action related to the 

misconduct.294 Making an important observation, a Marine SVC noted that while he would represent 

a client for his or her minor misconduct (e.g., underage drinking), when dealing with serious offenses 

that have harsher consequences he would want to consult with a defense counsel, under whose area of 

responsibility those offenses primarily fall.295

Before providing its assessment and recommendations, the JPP intends to request and review additional 

information from the Services—including details on their current investigator policies and practices—

as to how and when victims are notified that SVC services are available. The JPP recognizes that this 

issue was previously addressed by the Response Systems Panel. In its report, the RSP recommended 

that the Secretary of Defense develop and implement a policy that would make advising a victim of the 

availability of SVC assistance the first step of a sexual assault investigation, before he or she decides 

whether to file a restricted or unrestricted report, or no report at all.296 Consequently, the RSP further 

recommended that investigators be required to clearly inform victims of the availability of SVC services 

before interviewing them, thus enabling an SVC to explain the implications of the interview for a 

victim’s ability to preserve the right to make a restricted report. This is the only RSP recommendation 

that DoD rejected outright.297

On the question of SVCs’ scope of representation, particularly as it relates to their ability to handle 

collateral misconduct of their client, the JPP recognized that many SVCs, especially junior ones, do not 

have the background or certification necessary to represent clients for collateral misconduct. At the 

292 See Transcript of JPP Public Meeting 188 (Nov. 14, 2014) (testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ 

Counsel); see also id. at 201 (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional Victims’ Legal Counsel); see 

also id. at 199 (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ Counsel). In noting the difference immunity 

can make in a client’s willingness to come forward and be candid, Captain Kirk explained how he was able to work with 

local prosecutors to get immunity for a client who was involved in an incident that occurred off-base. Id.

293 Transcript of JPP Public Meeting 14, 46 (Dec. 12, 2014) (testimony of Col Don Christensen, U.S. Air Force (Retired), 

President, Protect Our Defenders); see also U.S. Air Force, Air Force Special Victims’ Counsel Charter 3 (“An 

SVC should not assist a member in preparing IG complaints, Military Equal opportunity Complaints, Congressional 

Complaints, or similar matters. However, if an SVC is already representing a client, the SVC may advise the client that 

these and similar avenues exist for addressing a complaint. Further, the SVC may review a client’s IG, Congressional, or 

similar complaint for the purpose of assuring that the contents of the complaint do not jeopardize the client’s rights or 

position with respect to the matter that led to the original representation.”), available at http://responsesystemspanel.whs.

mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_Related/04_USAF_SpecialVictimsCounsel_Charter.pdf.

294 See Transcript of JPP Public Meeting 201–03 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, 

Regional Victims’ Legal Counsel); id. at 187 (testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ Counsel); id. 

at 199 (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ Counsel).

295 Transcript of JPP Public Meeting 229 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Legal Counsel).

296 RSP Report, supra note 3, at 32 (Recommendation 62).

297 Compare DoD RSP Implementation Memo, supra note 3, at 13, with id. at 1–17.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

same time, it noted the benefits of allowing an SVC, who has established rapport with his or her client, 

to resolve minor disciplinary issues. However, before making any recommendations on this concern, 

the JPP intends to review a yet-to-be-released revision of DoD Instruction 1030.02 that will address 

SVCs’ scope of representation. 

G. SVC PROGRAM OVERSIGHT AND EVALUATION 

1. Oversight

The FY14 NDAA required the Secretary of Defense and the Secretary of Homeland Security to 

prescribe regulations for and periodically evaluate the special victims’ counsel programs that were 

mandated by Congress.298 The FY14 NDAA specified that within ninety days of its enactment, the 

Secretary of Defense was to provide a report to Congress describing how the Armed Forces planned 

to implement the SVC Program requirements contained in the act.299 This report, which was issued by 

DoD in April 2014, gave Congress a series of status updates for each Service’s SVC program.300

DoD advised the JPP that the Department does not oversee operation of or standards for the Services’ 

SVC programs, and DoD has not issued any regulations, directives, or instructions regarding the 

SVC programs since their inception.301 DoD plans to issue an instruction for the Victim and Witness 

Assistance Program revised to reflect the addition of SVC programs and changes in DoD policy 

regarding crime victims’ rights, which were recently expanded when additional victims’ rights were 

codified in Article 6b of the UCMJ.302

Congress assigned administrative responsibility for the SVC programs to the military Services, 

subject to DoD program policies.303 The Secretaries of each Service are responsible for establishing 

298 FY14 NDAA, Pub. L. No. 113-66, § 1716(a)(1)(h), 127 Stat. 672 (2013) (Establishing, 10 U.S.C. § 1044e(h) Regulations) 

(“The Secretary of Defense and the Secretary of the Department in which the Coast Guard is operating shall prescribe 

regulations to carry out this section; and 10 U.S.C. 1044e(e)(2) Administrative Responsibility – The Secretary of Defense 

(and, in the case of the Coast Guard, the Secretary of the Department in which the Coast Guard is operating) shall conduct 

a periodic evaluation of the Special Victims’ Counsel Programs operated under this section.”).

299 FY14 NDAA, Pub. L. No. 113-66, § 1716(c)(1), 127 Stat. 672 (2013) (Report Required) (“Not later than 90 days after 

the date of enactment of this Act, the Secretary of Defense, in coordination with the Secretary of Homeland Security 

with respect to the Coast Guard, shall submit to the Committees on Armed Services and Commerce, Science, and 

Transportation of the Senate and the Committees on Armed Services and Transportation and Infrastructure of the House 

of Representatives a report describing how the Armed Forces will implement the requirements of section 1044e of title 10, 

U.S.C.”).

300 DoD Report on Section 1716 Implementation, supra note 194, at 1.

301 DoD’s Response to JPP Request for Information 35(e) (Nov. 6, 2014).

302 Transcript of JPP Public Meeting 52–53 (Nov. 14, 2014) (testimony of Lt Col Ryan D. Oakley, Deputy Director, Legal 

Policy, Office of the Under Secretary of Defense for Personnel and Readiness); see also DoD’s Response to JPP Requests 

for Information 20, 35(e) (Nov. 6, 2014). VWAP was established by DoD following the passage of federal crime victim 

rights legislation in the 1990s. In addition to enumerating DoD policy regarding victims’ rights, the program designates 

paralegals or judge advocates, known as victim witness liaisons (VWLs), to assist victims of crime during the court-martial 

process and to inform victims of their rights. VWLs work for the prosecutor, do not have privileged communications with 

victims and are often part-time or collateral duty jobs. See generally U.S. Dep’t of Def., Dir. 1030.01, Victim and Witness

Assistance (Apr. 23, 2007), available at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf; U.S. Dep’t of Def., 

Instr. 1030.2, Victim and Witness Assistance Procedures (June 4, 2004), available at http://www.dtic.mil/whs/directives/

corres/pdf/103002p.pdf; see also FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013).

303 FY14 NDAA, Pub. L. No. 113-66, § 1716(a)(1)(e), 127 Stat. 672 (2013) (Establishing 10 U.S.C. 1044e(e)(1) 

Administrative Responsibility) (“Consistent with the regulations prescribed under subsection (h), the Judge Advocate 
65

III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

and supervising SVCs,304 with the Judge Advocates General and the Staff Judge Advocate to the 

Commandant of the Marine Corps providing operational oversight for their respective programs.305

Similarly, the Coast Guard special victims’ counsel program is managed by the Coast Guard Deputy 

Judge Advocate General.306

While the programs are independent, the Services have adopted a “team-based” approach to 

coordinating the SVC programs that relies on regular meetings between the SVC program managers.307

Program leaders told the JPP that they share best practices, lessons learned, and standard templates 

to ensure as much uniformity as possible. However, each Service makes independent decisions about 

its program’s management and operations, which, as described above, vary greatly.308 The Services 

indicated that they have collaborated on potential victim appeals and also extended opportunities for 

the other programs to file amicus briefs on appellate cases involving SVC issues.309

2. Current Practices of Reporting Data on the SVC Programs

Neither Congress nor DoD has provided guidance on how to measure the success or performance 

of the SVC programs, but the Services have each established different reporting and management 

methodologies. For instance, the Army requires each SVC to provide monthly reports that are 

compiled into an overall SVC program report, which is reviewed by the SVC Program Manager. SVCs 

also complete a standardized intake form for each new client and record the data into a system from 

which reports may be generated. In addition, after each court-martial, Army SVCs must prepare a 

memorandum for record (MFR) documenting what occurred during the court-martial process.310 In 

the Army, this report is forwarded to the SVC Program Manager and shared with the Judge Advocate 

General’s Law Center and School (TJAGLCS) to help in developing future course curricula and student 

exercises.311 In addition to examining reports, the SVC Program Manager indicated that he conducts 

on-site installation visits to review SVC operations. As of November 2014, the Army had completed 

nine of these visits.312

General under the jurisdiction of the Secretary and within the Marine Corps the Staff Judge Advocate to the Commandant 

of the Marine Corps, is responsible for the establishment and supervision of individuals designated as Special Victims’ 

Counsel.”).

304 U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response (Aug. 14, 

2013), available at http://www.sapr.mil/public/docs/news/SECDEF_Memo_SAPR_Initiatives_20130814.pdf.

305 Transcript of JPP Public Meeting 52–53 (Nov. 14, 2014) (testimony of Lt Col Ryan D. Oakley, Deputy Director, Legal 

Policy, Office of the Under Secretary of Defense for Personnel and Readiness); see also Services’ Responses to JPP Request 

for Information 19(i) (Nov. 6, 2014).

306 Coast Guard’s Response to JPP Request for Information 35(e) (Nov. 6, 2014).

307 See Services’ Responses to JPP Requests for Information 19(i), 35 (Nov. 6, 2014).

308 See Services’ Responses to JPP Request for Information 35(c) (Nov. 6, 2014).

309 See Air Force’s Response to JPP Requests for Information 19(i), 35(a) (Nov. 6, 2014). Services have also formed a working 

group to develop a framework for child representation, which is an issue beyond the scope of this Panel, but one that has 

come up frequently in presentations. Id.

310 Army’s Responses to JPP Requests for Information 40, 44 (Nov. 6, 2014).

311 Army’s Response to JPP Request for Information 40 (Nov. 6, 2014). The Army JAG School is also currently exploring the 

development of an advanced representation and advocacy course curriculum based in part on these reports.

312 Transcript of JPP Public Meeting 65, 165 (Nov. 14, 2014) (testimony of COL James Robert McKee, U.S. Army, Program 

Manager, Special Victims’ Counsel Program).
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

The leaders of the Air Force SVC program prepare weekly and monthly reports for the Air Force Judge 

Advocate General, as well as periodic reports to the Secretary and Chief of Staff of the Air Force. 

Weekly reports capture statistical program data, including the number of SVC requests and of courtsmartial and Article 32 hearings attended by SVCs.313 Monthly reports on case trajectories project 

future caseload on the basis of trends of current representation, and other monthly reports identify 

the distribution of cases by region and attorney. In addition, the Air Force maintains a community 

database that is monitored by SVC program leaders and tracks SVC performance according to nine 

criteria.314 The Air Force tracks client demographic information through a standard client intake form, 

and SVCs complete reports for all Article 32 and court-martial proceedings attended.315

The Navy assesses VLC program progress through weekly status reports from each VLC to 

VLC program leadership and the Commander, Naval Legal Service Command (CNLSC).316 VLC 

program leaders meet quarterly with the CNLSC to assess program performance, to consider policy 

developments, and to review pending requirements.317 Navy VLCs use a standard client intake sheet 

and a standardized document checklist covering each stage in the military justice process.318 The Navy 

plans to complete a self-assessment of the VLC program in FY15, focusing on program administration, 

and to undertake a formal inspection by senior JAG Corps leaders in FY16.319

The Marine Corps reported to the JPP that metrics to assess its VLC program and the program’s longterm performance are still being developed.320 Currently, VLCs use an electronic case management 

system to capture client intake information and case progress, and program leadership generates 

reports as needed.321 In accordance with the Marine Corps Manual for Legal Administration, the VLC 

program chief must report annually to the Staff Judge Advocate to the Commandant of the Marine 

Corps regarding the delivery of VLC services.322 The Marine Corps also noted that it responds to 

313 Air Force’s Responses to JPP Requests for Information 19(d), 40 (Nov. 6, 2014). The Air Force weekly reports provide 

(1) Number of new clients an SVC has undertaken to represent; (2) number of consultations; (3) number of Article 32s 

attended; (4) number of courts-martial attended; (5) number of interviews attended; (6) number of conversions from 

restricted to unrestricted; (7) victim feedback from Victim Impact Surveys. Id. 

314 Id. The performance measures are (1) meetings with client; (2) attending interviews; (3) corresponding and consulting 

on client’s behalf; (4) advocating client’s choices and directions to decisionmakers; (5) asserting privacy rights during 

discovery; (6) representing clients for collateral misconduct or immunity requests; (7) assisting with expedited transfers; 

(8) Freedom of Information Act requests; (9) Hours spent traveling related to representation. Id.

315 Air Force’s Response to JPP Request for Information 44 (Nov. 6, 2014).

316 Navy’s Responses to JPP Requests for Information 19(d), 40 (Nov. 6, 2014).

317 Transcript of JPP Public Meeting 97 (Nov. 14, 2014) (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, Chief of 

Staff, Victims’ Legal Counsel Program); see also Navy’s Responses to Requests for Information 19(d), 40 (Nov. 6, 2014).

318 Navy’s Response to JPP Requests for Information 44 (Nov. 6, 2014).

319 Transcript of JPP Public Meeting 98, 164 (Nov. 14, 2014) (testimony of CAPT Karen Fischer-Anderson, U.S. Navy, Chief 

of Staff, Victims’ Legal Counsel Program). 

320 Marine Corps’ Response to JPP Request for Information 19(d) (Nov. 6, 2014).

321 Marine Corps’ Responses to JPP Requests for Information 19(d), 40, 44 (Nov. 6, 2014). Current metrics used: (1) Number 

of victims seeking and receiving VLCO services; (2) number of cases requiring active representation; (3) number of 

interviews attended; (4) number of court appearances; (5) number of court filings; (6) conversion rate from restricted to 

unrestricted reports. Marine Corps’ Response to Request for Information 19(d) (Nov. 6, 2014).

322 Marine Corps’ Response to JPP Request for Information 19(e) (Nov. 6, 2014) (citing U.S. Marine Corps, Order

P5800.16A, Marine Corps Manual for Legal Administration ch. 7 (Feb. 26, 2014)).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

regular requests from Marine Corps headquarters, DoD, members of Congress, and statutory panels 

such as the JPP about organization status and metrics.323

Coast Guard SVC program data are collected by program staff from information submitted by SARCs 

and trial counsel. Currently, Coast Guard SVCs are not required to complete specific forms or reports 

for each case. In practice, SVCs maintain personal logs of information, similar to those maintained by 

defense counsel. The Coast Guard Judge Advocate General and the Deputy Judge Advocate General 

review metrics semiannually.324

3. Program Evaluation Standards

During its November public meeting, the JPP heard from Ms. Meg Garvin, Executive Director of 

the National Crime Victims’ Law Institute, regarding the military’s SVC programs and the ways in 

which similar programs are evaluated in civilian jurisdictions. She lauded the training and attorneys 

in the military’s SVC programs, observing that no state, county, or government entity had put in place 

anything equal. But civilian crime victim programs, she pointed out, are run by nonprofit organizations 

and generally are evaluated on client satisfaction.325 She recommended that the military’s programs give 

more weight in their evaluations to client satisfaction rather than case outcomes, and she stressed that 

SVCs require more training, including advanced training, to remain current as the law evolves.326

Though the information was requested from all of the Services, only the Air Force provided the JPP 

with specific evaluation standards for measuring the success of its program and specific data points for 

each metric: (1) victim impact survey results, (2) conversions from restricted to unrestricted reports, 

and (3) the number of clients who decline to participate in the prosecution process after filing an 

unrestricted report.327

The Marine Corps identified as its single evaluation standard “that all victims of crime that are eligible 

for VLCO services and that seek VLC assistance are provided effective legal advice and representation 

required by 10 U.S.C. 1044e.”328 The Marine Corps did not explain how the provision of “effective 

legal advice” is or will be measured. The Navy reported that a VLC program self-assessment conducted 

in FY15 will serve as its evaluation standard but did not specify what will be assessed or how the 

assessment will be evaluated.329 The Army and Coast Guard did not provide narrative responses to the 

question, but instead referred to their programs’ policy documents—neither of which makes mention 

of program performance measures.330

323 Marine Corps’ Response to JPP Request for Information 19(e) (Nov. 6, 2014).

324 Coast Guard’s Response to JPP Request for Information 42, 40 (Nov. 6, 2014).

325 Transcript of JPP Public Meeting 16–17, 27 (Nov. 14, 2014) (testimony of Ms. Meg Garvin, Executive Director, National 

Crime Victim Law Institute).

326 Id. at 29–30, 57–58. 

327 Transcript of JPP Public Meeting 162–64 (Nov. 14, 2014) (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, 

Chief, Victims’ Counsel Division); see also Air Force’s Response to JPP Request for Information 19(f) (Nov. 6, 2014).

328 Marine Corps’ Response to JPP Request for Information 19(f) (Nov. 6, 2014).

329 Navy’s Response to JPP Request for Information 19(f) (Nov. 6, 2014).

330 Army’s and Coast Guard’s Responses to JPP Request for Information 19(f) (Nov. 6, 2014).
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

a. Special Victims’ Counsel Utilization Rate

An evaluation standard not identified by any military Service, but considered by the JPP to be an 

indicator of the success and effectiveness of the SVC program, is the extent to which SVC services 

are actually being used by victims of sexual assault who file restricted and unrestricted reports.331 To 

assess consistent data across the military Services, the JPP requested information from each Service 

on every counsel who served as an SVC during FY14. The Services were asked to provide detailed 

data, including where SVCs were assigned, the length of their assignments, what specialized training 

they received, their actual and maximum caseloads, and their military justice experience. The JPP 

also requested information about the number of clients served by SVCs and what type of support was 

provided to clients during the investigation and military judicial process.332

From the requested data, the JPP calculated the total number sexual assault victims represented by 

SVCs who filed either restricted or unrestricted reports in each Service during FY14.333 The JPP then 

compared the total number of FY 14 sexual assault reports in the military as reported by DoD’s Sexual 

Assault Prevention and Response Office (SAPRO) to the number of victims who used SVC services 

to determine SVC utilization rates.334 Table 3.3 provides the FY14 utilization rates for each Service, 

indicating that across DoD, 73% of individuals who made unrestricted reports and 23% of those who 

made restricted reports used SVC services.335 The difference in utilization rates between those filing 

restricted and unrestricted reports is substantial, and more analysis is needed to determine whether 

other opportunities exist to extend SVC support to more victims filing unrestricted reports.

Table 3.3. FY 2014 SVC Utilization Rates

FY 2014 SVC Utilization Rates

SVC Utilization Rate DoD 

Total Army Air Force Navy Marine Corps

Coast 

Guard

Unrestricted Reports 73% 60% 87% 82% 65% 54%

Restricted Reports 23% 27% 30% 19% 11% 36%

Total SVC Utilization 

Rate 61% 55% 69% 67% 41% 50%

SOURCES: For the purposes of this table, SVC utilization rates were calculated by dividing the total number of victims who 

consulted with an SVC by the total number of sexual assault reports that were reported by DoD for FY14.

331 Services’ Responses to JPP Requests for Information 43(a),(b) (Nov. 6, 2014).

332 Services’ Responses to JPP Request for Information 61 (Dec. 19, 2014).

333 Id.

334 U.S. Dep’t of Def., Report to the President of the United States on Sexual Assault Prevention and Response (Dec. 

2014) [hereinafter DoD POTUS Report], available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_

Report_to_POTUS_Full_Report.pdf. The term “SVC utilization rate” refers to the rate at which victims making restricted 

or unrestricted reports of sexual assault elect to use SVC services. This should be distinguished from the use of the term 

“utilization rate” in civilian legal practice, which generally tracks billing efficiency for an individual or a firm.

335 Id.; Services’ Responses to JPP Request for Information 61 (Dec. 19, 2014). Some victims who make reports of sexual 

assault incidents may not qualify for SVC services, so the effective utilization rate would be somewhat higher if only those 

eligible for SVC services were counted. 
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

b. Victim Satisfaction Surveys

The Air Force, Navy, and Coast Guard have each developed their own victim satisfaction surveys, 

although the Navy and Coast Guard did not identify these surveys as an evaluation metric.336 The 

Air Force considers victim satisfaction to be its most important program evaluation standard. The 

Air Force Victim Impact Survey (VIS), an electronic survey provided through an outside vendor, was 

implemented in March 2013.337 Containing a mixture of 42 objective and open-ended questions, it 

was modeled on a victim impact survey developed and administered by RAND in 2012.338 The VIS is 

provided to victims after disposition of a case is complete, and victims have the choice of completing 

the survey anonymously or including their contact information.339

The Air Force provided the JPP with a copy of the VIS survey and two VIS response reports, one that 

was based on 45 victim responses received in FY13 and a second report based on 85 victim responses 

received between April 2013 and March 2014.340 The second report, which contains the most recent 

data provided to the JPP, indicated that 95% of the respondents were represented by SVCs, with 98% 

reporting that they were either extremely satisfied or satisfied with the advice and support of their SVC 

during the Article 32 hearing and court-martial.341 In addition, 98% of survey respondents said they 

would recommend to other victims of sexual assault that they request a special victims’ counsel.342

Navy victims of sexual assault are asked to fill out a confidential Victim Satisfaction Survey at the 

close of VLC support. VLCs also encourage victims to participate in the broader DoD Survivor 

Experience Survey (SES) discussed in greater detail below.343 The Navy provided the JPP with two 

VLC Client Satisfaction Survey Reports—one from January 2014 based on 18 responses and one 

from October 2014 based on 14 responses.344 According to the October 2014 Navy report, 100% of 

respondents were very satisfied with their VLC attendance at the Article 32 pretrial hearing and at 

court proceedings. Eighty-three percent of respondents were very satisfied with their VLC’s advocacy 

on their behalf (the remaining 17% were neutral). Eighty percent of respondents were very satisfied 

336 See Services’ Responses to JPP Request for Information 45 (Nov. 6, 2014).

337 Air Force’s Responses to JPP Requests for Information 19(f), 45 (Nov. 6, 2014).

338 Air Force’s Response to JPP Request for Information 45 (Nov. 6, 2014) (referencing RAND Corporation, No More

Rights Without Remedies: An Impact Evaluation of the National Crime Victim Law Institute’s Victims’ Rights Clinics

(2012), available at http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR1179.pdf).

339 Id.

340 Id., att. 45.1 (“Military Justice Feedback – SA Victims Survey Screenshots”), att. 45.2 (“Victim Impact Survey Data 

(FY13)”), att. 45.3 (“Air Force Victim Impact Survey Results (Apr 2013 – Mar 2014)”).

341 Id., att. 45.3 (“Air Force Victim Impact Survey Results (Apr 2013 – Mar 2014)”), at 16 (Q13), 22–23 (Q24, Q26). In a 

comparative question about overall treatment that included victims whose cases did not necessarily go to an Article 32 

or court-martial, SVCs were rated higher than any of the other stakeholders, with 88% of respondents either extremely 

satisfied (80%) or satisfied (8%) with their treatment by the SVC compared to 70% of respondents reporting that they 

were extremely satisfied (30%) or satisfied (40%) with investigators, 57% extremely satisfied (30%) or satisfied (27%) 

with trial counsel, 86% extremely satisfied (63%) or satisfied (23%) with their SARC, and 75% either very satisfied (48%) 

or satisfied (27%) with their Victim Advocate. Id. at 9 (Q33).

342 Id. at 26 (Q29).

343 Navy’s Response to JPP Request for Information 45 (Nov. 6, 2014).

344 Id., encl. 26 (“VLC Client Satisfaction Survey Report (29 Jan 2014)” and “VLC Client Satisfaction Survey Report (Part II) 

(14 Oct 2014)”).
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

with their VLC’s assistance on harassment or retaliation issues (the remaining 20% were neutral). All 

victim respondents said they would refer a friend who was the victim of sexual assault to a VLC.345

The Coast Guard’s SVC program and SAPR office use a joint victim satisfaction survey completed 

by victims at the end of the process. The SVC program office administers the survey and maintains 

response data. The Coast Guard told the JPP that because the survey is provided only after the victim’s 

case is complete, insufficient data exist at this time to create a report.346

The Army and Marine Corps both told the JPP that they will not independently survey victims but will 

exclusively rely on the SES developed by DoD’s SAPRO.347 The Marine Corps VLC Program Manager 

noted that she provided considerable input into the development of the SES.348 Neither the Army nor 

Marine Corps identified measurement of victim satisfaction as a program performance standard.349

The SES was developed as an ongoing survey to provide victim feedback on the sexual assault 

reporting process and experience. Its questions are designed to assess awareness of reporting options 

and resources as well as satisfaction with how SARCs, VAs, legal personnel, medical and mental health 

providers, and leadership respond to sexual assault reports.350 Uniformed military members over the 

age of 18 who made a restricted or unrestricted report for any form of sexual assault at least 30 days 

previously, but after October 1, 2013, are eligible to take the SES.351 Survey items are Service-specific, 

and the survey is conducted across active duty, Reserve, and National Guard personnel.352 SARCs are 

primarily responsible for coordinating with eligible respondents to complete the SES, with additional 

support from VAs and SVCs.353

The 2014 SES, which was published by DoD in December 2014 as part of DoD’s report to the 

President on sexual assault prevention and response, compiled information from 151 surveys 

completed between June 4, 2014, and September 22, 2014.354 It provided only limited victim feedback 

on SVCs. Sixty-eight percent of survey respondents had used an SVC or VLC, and the survey asked 

respondents whether their SVC had treated them professionally (97% said yes), listened to them 

without judgment (96% said yes), supported them (96% said yes), and thoroughly answered their 

questions (93% said yes).355

The JPP believes that victim surveys provide important feedback and information regarding the 

performance of SVCs and the effectiveness of the SVC programs. The JPP will continue to review 

345 Id. at 3.

346 Coast Guard’s Response to JPP Request for Information 45 (Nov. 6, 2014).

347 Army’s and Marine Corps’ Responses to JPP Request for Information 45 (Nov. 6, 2014).

348 Marine Corps’ Response to JPP Request for Information 45 (Nov. 6, 2014).

349 Army’s and Marine Corps’ Responses to Request for Information 19(f) (Nov. 6, 2014).

350 Defense Manpower Data Center (DMDC), Defense Research, Surveys, and Statistics Center (RSSC), 2014 Survivor

Experience Survey: Report on Preliminary Results: Fiscal Year 2014, Quarter 4, at iii (Oct. 2014), available at http://

www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_Annex_2_DMDC.pdf.

351 Id. at iii–iv.

352 Id. at iv.

353 Id.

354 Id.

355 Id. at 51.
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victim survey initiatives and the information from victim surveys in its ongoing assessment of the SVC 

programs.

c. Conversions from Restricted to Unrestricted Reports

The effect of SVC representation may also be reflected in the decision of victims to convert restricted 

reports of sexual assault to unrestricted reports. The Air Force and Marine Corps reported tracking 

conversion rates. Only the Air Force considers the metric a measure of program effectiveness, although 

the Marine Corps indicated that it views conversion rate as a measure of the VLC program’s impact.356

The JPP used Service data for direct assessment and for comparison with other data currently collected 

by DoD on sexual assault. In its December 2014 Report to the President, DoD stated that 19% of all 

victims who made reports of sexual assault in FY14 converted from restricted to unrestricted reports.357

Using SVC data provided to the JPP by the Services, the JPP calculated that clients represented by SVCs 

converted from restricted to unrestricted reports at a much higher rate—36% for DoD overall.358 Table 

3.4 provides FY14 conversion rates for DoD and each of the Services. The JPP agrees with the Air 

Force that conversion rates among victims who are represented by SVCs may indicate how well victims 

understand the consequences of their reporting decisions, their confidence in the military judicial 

process, and their trust in advice received from their SVCs. 

Table 3.4. FY 2014 Sexual Assault Report Conversion Rates 

FY 2014 Sexual Assault Report Conversion Rates

Conversion Rate DoD 

Total Army Air Force Navy Marine Corps

Coast 

Guard

Reported Conversion 

Rate 19% 20% 18% 24% Not 

Reported

Not 

Reported

Conversions Made by 

SVC Clients 36% 32% 36% 38% 36% 48%

Difference +17% +12% +18% +14% N/A N/A

SOURCES: “Reported Conversion Rate” figures are derived from information contained within U.S. Dep’t of Def., Report to 

the President of the United States on Sexual Assault Prevention and Response app. A (Provisional Statistical Data on Sexual 

Assault) (Dec. 2014). “Conversions Made by SVC Clients” figures are derived from Services’ responses to JPP Request for 

Information 61 (Dec. 18, 2014).

d. Victim Drop-Out Rates 

The rate at which clients decline to go forward in the prosecution process after making an unrestricted 

report, referred to as the “victim drop-out rate,” may be another measure of how well SVCs are 

meeting the needs of their clients. Only the Air Force currently tracks drop-out rate as an indicator 

of its SVC program’s success. In the year before the Air Force SVC program began, 29% of victims 

356 See Marine Corps’ Response to JPP Request for Information 19(d) (Nov. 6, 2014).

357 DoD POTUS Report, supra note 334, app. A (Provisional Statistical Data on Sexual Assault), at 33.

358 Services’ Responses to JPP Request for Information 61 (Dec. 18, 2014).
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declined to continue participating in the court-martial process.359 One of the goals of the Air Force 

program was thus for SVCs to provide assistance to prevent victim fatigue and frustration, thereby 

reducing the drop-out rate.360

Using information provided by the Services, Table 3.5 provides FY14 DoD and Service drop-out rates 

for victims who were represented by SVCs. The data also show the percentage of victims represented 

by SVCs who stopped participating during each phase of the investigation and military judicial process. 

The JPP’s review of individual SVC data provided by the Services reveals that the Air Force drop-out 

rate has declined significantly—from a 29% drop-out rate before the SVC program began to a 19% 

drop-out rate for FY14 among Air Force victims represented by SVCs.361

Other than the Air Force’s pre-SVC program information, DoD and the Services have not tracked 

or reported drop-out rates for all victims who file unrestricted reports. Therefore, no additional 

comparative data against which to measure data from the SVC programs yet exist. However, the JPP 

believes that drop-out rate trends may reflect victims’ trust in and satisfaction with the military justice 

system and legal representation provided to them through the SVC programs. The JPP will continue to 

monitor drop-out rates across time and within each of the military Services.

Table 3.5. FY 2014 Sexual Assault Drop-Out Rates for Victims Represented by SVCs 

FY 2014 Sexual Assault Drop-Out Rates for Victims Represented by SVCs

Victim Drop-Out DoD 

Total Army Air Force Navy Marine Corps

Coast 

Guard

During Investigation 10% 4% 17% 8% 20% 13%

During Article 32 3% 4% 2% 1% 6% 0%

Post-Referral 1% 1% 0% 0% 3% 2%

Total Drop-Out 14% 9% 19% 10% 30% 14%

SOURCE: Derived from Services’ Responses to JPP Request for Information 61 (Dec. 18, 2014).

e. JPP Assessment of SVC Program Evaluation Standards

The JPP is concerned about variations in standards and procedures that are being developed and 

employed to evaluate the SVC programs. Best practices and assessment measures used by some 

359 See Jakob Rodgers, Air Force Program Puts Lawyer in Victim’s Corner, [Colo. Springs] Gazette, Mar. 23, 2013, available 

at http://gazette.com/air-force-program-puts-lawyer-in-victims-corner/article/152664. Of 334 sexual assault cases handled 

by the Air Force during fiscal year 2011, 96 victims (29%) chose to stop working with investigators or prosecutors, often 

causing those cases to stall and leaving prosecutors unable to go forward. Id. According to then-Lieutenant Colonel Dawn 

Hankins, who headed the first Air Force-wide program, this prompted the SVC initiative in the Air Force. Id.; see also Air 

Force’s Response to JPP Request for Information 19(f) (Nov. 6, 2014).

360 Air Force’s Response to JPP Request for Information 19(f) (Nov. 6, 2014); see also Anna Mulrine, Sexual Assault in 

the Military: Can Special Counsels for Victims Help? Christian Sci. Monitor, July 17, 2013 (quoting Lt Gen Richard 

Harding, Judge Advocate General, U.S. Air Force).

361 See infra Table 3.5 (FY 2014 Sexual Assault Drop-Out Rates for Victims Represented by SVCs (percent)); Air Force’s 

Response to JPP Request for Information 19(f) (Nov. 6, 2014). Prior to implementing the SVC Program, the Air Force 

experienced a 29% victim drop-out rate. Rodgers, supra note 359 (referencing statistic that 96 victims who were involved 

in Air Force’s 334 sexual assault cases in FY11 (29%), stopped working with investigators or prosecutors).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

of the Services should be evaluated and then made uniform across all of the Services. DoD should 

be evaluating, monitoring, and reporting on the SVC programs; providing guidance; and ensuring 

centralized, standardized assessment of their effectiveness.

The SVC programs have been operating within each Service for at least one year, but assessment and 

evaluation metrics for the programs have not yet been developed. Assessment metrics are necessary 

to evaluate program performance, and they are also important to ensuring quality control in 

evaluations. DoD needs to oversee the establishment of appropriate program performance measures 

and evaluations. Rather than applying different evaluation standards, it is important to use metrics 

uniformly across the military Services to assess client satisfaction and program performance.

The JPP believes that client satisfaction is an important measure of success: the performance of 

SVCs and the SVC programs cannot be measured without gauging it, and all the Services should 

be conducting victim satisfaction surveys. It is not clear to the JPP that victim satisfaction can be 

adequately assessed through surveys conducted only once per year. The JPP will continue to review 

current surveys used by the Services as well as the Survivor Experience Survey, once information from 

that survey becomes available.

It is also important to measure and evaluate the effects of the SVC programs to ensure that they 

are working effectively. For example, metrics assessing the use of the expedited transfer program 

and whether those victims who use the program stay in or leave the military, the retention rates for 

Service members who file reports of sexual assault, and delays in investigations or judicial proceedings 

attributable to SVC participation as compared to delays cases that do not involve SVCs would provide 

valuable information. 

4. Other Feedback from Stakeholders in the Military Justice System

In addition to Service feedback on SVC program assessment, the JPP also heard comments and 

opinions about the SVC programs from a variety of stakeholders in the military justice system. 

Although anecdotal, these perspectives provided further insight about the programs that may be used 

to identify issues regarding their implementation and effect.362

a. Victims Who Are SVC Clients

Five victims of sexual assault who were represented by SVCs appeared before the JPP during the 

December 2014 public meeting.363 Each had positive reviews of the program and the counsel they 

received from their SVC.364 One victim stated that the “SVC program has positively impacted my 

362 RSP Report, supra note 3, at 26 (Recommendation 48) (recommending that “[i]n addition to assessing victim satisfaction 

with the Special Victim Counsel program, the Service Secretaries survey convening authorities, staff judge advocates, 

prosecutors, defense counsel, military judges, and investigators to assess the effects of the program on the administration 

of military justice”). The recommendation was approved by DoD in Dec 2014. DoD RSP Implementation Memo, supra

note 3, at 5.

363 See Transcript of JPP Public Meeting 147-245 (Dec. 12, 2014) (testimony of Petty Officer N.S., Ms. J.B., Airman V.T., 

SPC A.S., and Ms. R.S.). The JPP expresses its sincere gratitude to these brave survivors for their courage in speaking out 

on this issue and for the tremendous insight they provided to the Panel. Out of respect for the privacy of these individuals, 

they were identified to the JPP and in the meeting transcript by their initials.

364 See Transcript of JPP Public Meeting 156–57 (Dec. 12, 2014) (testimony of Ms. J.B.) (stating that her VLC was an 

essential part of success of process for her and of helping her keep her dignity intact and protecting her where the law 

allowed); id. at 177-78 (testimony of Ms. R.S. stating that having someone there to back her up and provide support has 

been a good experience).
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involvement with the investigation moving forward,” while another said, “I can honestly say that 

without her [the SVC] I probably wouldn’t have been able to survive a trial and go through everything 

that I went through.”365 Another victim noted that she had previously been a victim in a civilian trial, 

describing her experience in that process as “much worse.”366 She told the JPP that she initially did not 

understand how having an attorney would help, but she soon found her SVC aiding her a great deal. 

She said that “without the support of the full SAPR Program, I would have given up a long time ago 

and would have never found justice.”367

Another victim said she owed her VLC “many thanks . . . for helping keep my dignity intact and 

protect[ing] me in places the law allowed.” She said her experience testifying at an Article 32 before 

being represented by an SVC left her “exposed and vulnerable,” but that once she was assigned a VLC, 

she “was able to cooperate in the judicial process with a greater sense of security and knowledge of 

the process.” She said her VLC “made sure evidence about my personal life that was not relevant to 

the case was kept out of the courtroom,” and added, “I will forever be grateful to the team of military 

members and especially for my VLC who fought for my justice and my life.”368

Some military victims described social retaliation they experienced after reporting their sexual assault 

and how their situations improved once they began working with an SVC. A Coast Guard victim told 

the JPP that she experienced social isolation and difficulty in her organization following her assault. 

She said her situation “got much better” once she was assigned an SVC, noting the importance of 

having someone to back her up and support her.369

Another victim also recounted experiencing social retaliation because many people became aware of 

her case. She said she “no longer felt safe or comfortable being in the area that I was. I have friends 

and other people looking at me different and talking about me. There were people I didn’t even know 

who knew about me just from hearing about my situation, and it was difficult.” She described the 

pressure she felt and said, “You go through anxiety, you’ve got to go see behavioral health, and your 

commanders or your battle buddies or your units basically don’t understand because they don’t know 

what happened to you. And if they do know, it becomes judgment, and . . . the worst thing for any 

soldier is judgment.”370 That victim, like others who spoke before the JPP, received assistance from her 

SVC to use the expedited transfer program to relocate to a new unit.371 She said she received assistance 

and information from her SVC that had not been provided to her by other supporting agencies and 

responders.372

365 Transcript of JPP Public Meeting 149 (Dec. 12, 2014) (testimony of Petty Officer N.S.); id. at 175 (testimony of SPC A.S.).

366 Transcript of JPP Public Meeting 168 (Dec. 12, 2014) (testimony of Airman V.T.).

367 Id. at 168–69.

368 Transcript of JPP Public Meeting 157 (Dec. 12, 2014) (testimony of Ms. J.B.).

369 Transcript of JPP Public Meeting 176 (Dec. 12, 2014) (testimony of Petty Officer N.S.).

370 Transcript of JPP Public Meeting 183–84, 185–86 (Dec. 12, 2014) (testimony of SPC A.S.).

371 Id. at 188; see also id. at 188 (testimony of Airman V.T.).

372 Transcript of JPP Public Meeting 185-86 (Dec. 12, 2014) (testimony of SPC A.S.).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

b. Special Victims’ Counsel

i. Overall Assessment

All of the SVCs who appeared before the JPP had strong praise for the program. A Coast Guard SVC 

described the program as “a valuable component . . . that gives victims a voice and a choice in this very 

difficult time,” while an Air Force SVC called the program “invaluable in providing victims with legal 

counsel to more fully participate in the process and to give them a voice in the process that they didn’t 

have previously.”373 In noting his pride in serving as an SVC, an Army counsel stated that the program 

“enhance[d] a victim’s privacy, dignity, understanding [of] military justice, and . . . provide[d] victims 

a sense of security within a process that some of my clients genuinely feel can be as traumatizing as 

the sexual assault itself.” He said, “The confidentiality that I offer a victim as her SVC is unique and 

superior to what a trial counsel could provide as an agent of the government.”374

Noting her initial hesitancy at being assigned to the position, a Navy SVC said, “I feel extremely 

lucky to be an [SVC]. I did not realize until I started working with clients that there was a big hole 

in our support system for victims where they were largely left in the dark through the military justice 

process.” She continued, “It is also really empowering for victims to have someone whose job it is to 

enforce their right to be heard through the process . . . it is important for our clients that someone is 

fighting for them and fighting to protect their privacy.”375

SVCs reported positive working relationships with SAPR personnel.376 While SAPR personnel usually 

refer victims to SVCs, one Marine SVC described sending a particularly stressed client to SAPR 

personnel for counseling, adding, “[W]e refer them back and forth . . . there is good communication 

between the SAPR folks and us.”377 SVCs also spoke of productive working relationships with 

prosecutors, which they feel lead to greater consideration of a victim’s rights and interests in the 

criminal justice process.378

ii. Access to Information and Procedural Rules

Many SVCs detailed issues with prosecutors, defense counsel, and investigators regarding access to 

information, including but not limited to all unsealed reports, transcripts, and filed pleadings.379 A 

373 Transcript of JPP Public Meeting 171 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel); Transcript of JPP Meeting 160 (Dec. 12, 2014) (testimony of Capt Christopher Mangels, U.S. Air 

Force, Special Victims’ Counsel).

374 Transcript of JPP Public Meeting 185–86, 188 (Nov. 14, 2014) (testimony of CPT Jesse S. Sommer, U.S. Army, Special 

Victims’ Counsel). 

375 Transcript of JPP Public Meeting 164 (Dec. 12, 2014) (testimony of LT Kathryn DeAngelo, U.S. Navy, Victims’ Legal 

Counsel).

376 Transcript of JPP Public Meeting 204 (Nov. 14, 2014) (testimony of CDR Colleen Shook, U.S. Navy, Officer in Charge, 

Victim’s Legal Program Mid-Atlantic); id. at 207 (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional Victims’ 

Legal Counsel).

377 Transcript of JPP Public Meeting 207–08 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Legal Counsel).

378 Transcript of JPP Public Meeting 174–76 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel); see also id. at 194–95 (testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ Counsel).

379 Transcript of JPP Public Meeting 180 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Legal Counsel); id. at 238–40 (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ Counsel, U.S. Air 

Force); Transcript of JPP Public Meeting 152 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, 
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Marine Corps VLC described the issue as one “we are constantly struggling toward,” noting that his 

ability to receive documents and information is based on his personal relationships with the involved 

parties, not on concrete rules. The Marine SVC said that access “rules should not be dependent upon 

our personal relationships. Our success should not be dependent on that, especially dealing with 

victims’ rights. They should be more clear. They should be understood by all parties in place.”380

Similarly, SVCs described in detail the need for procedural rules to govern their participation 

throughout the judicial process, including SVC participation in courts-martial, and issues such as 

where to stand or sit, what proceedings they are entitled to be notified about and attend, and how they 

may be recognized and heard.381 When asked what changes were needed in current rules, a Marine 

Corps VLC said he was not asking for “changes in the rules. I am asking for rules.” The same SVC 

described the awkward way in which SVCs sometimes make appearances during trials. Although 

some judges were receptive to his presence, he noted, “What I do in front of one judge is going to be 

completely different than what my counterpart or what my subordinate attorney does to a different 

judge the next day in that same exact courtroom.”382 In explaining the lack of protocol or rules for 

his physical presence in a courtroom, an Army SVC said, “So going on the record, for example, finds 

me often dancing around the court as to whether I will be doing so from the gallery or behind a 

podium.”383 Another Marine SVC summed up the issue: “In my opinion, we need procedural rules that 

clearly define our role in the investigative phase, the initial disposition phase, the preliminary hearing 

phase, and the judicial process phase.”384

iii. SVC Career Progression and Retaliation

The effect that serving as an SVC has on the careers and professional progress of judge advocates 

remains an area of concern for SVCs. The JPP heard testimony about a lieutenant-SVC who was 

warned by a senior-level commander to “watch her rank” and told that the interest of the Service 

comes before the interest of the SVC’s client.385

The JPP heard from numerous other SVCs who said they experienced no retaliation or negative 

consequences as a result of their work.386 A Marine SVC said she does not worry about retaliation or 

Regional Victims’ Legal Counsel); id. at 165 (testimony of LT Kathryn DeAngelo, U.S. Navy, Victims’ Legal Counsel).

380 Transcript of JPP Public Meeting 180–81 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Legal Counsel).

381 See id. at 179, 221 (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional Victims’ Legal Counsel); id. at 213–14 

(testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ Counsel); Transcript of JPP Public Meeting 153 (Dec. 12, 

2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, Regional Victims’ Legal Counsel); id. at 172 (testimony 

of CPT Brian E. Stransky, U.S. Army, Special Victims’ Counsel); see also infra Section IV(C)(2) (Victims’ Right to Be 

Reasonably Heard: Current Judicial Procedures on SVC/VLC Appearances).

382 Transcript of JPP Public Meeting 221, 179, 221 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

383 Transcript of JPP Public Meeting 213–14 (Nov. 14, 2014) (testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ 

Counsel).

384 Transcript of JPP Public Meeting 153 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

385 Transcript of JPP Public Meeting 13 (Dec. 12, 2014) (testimony of Col Don Christensen, U.S. Air Force (Retired), 

President, Protect Our Defenders); see also id. at 54 (testimony of Ms. Simone Hall, Sexual Assault Response Coordinator, 

U.S. Coast Guard).

386 See Transcript of JPP Public Meeting 171 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel); Transcript of JPP Public Meeting 153 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. 
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

that the billet “will negatively affect my career. . . . [I]n fact, I believe this billet will have a positive 

impact on my career.”387 One Coast Guard SVC said, “I would definitely recommend my fellow JAGs 

take the opportunity to serve as an SVC.”388 An SVC Program Manager observed that she had no 

concerns about career progression for SVCs, noting that since the inception of the program several 

SVCs had been selected to pursue advanced law degrees in follow-on assignments.389 Regarding an 

Air Force SVC who alleged retaliation, the Air Force Judge Advocate General noted that about eighty 

judge advocate captains were selected for involuntary separation as part of a larger force reduction, 

adding that SVCs were selected at a slightly lower percentage than those in other fields of practice.390

Finally, all Services detailed to the JPP how SVCs are officially protected from retaliation, including by 

federal statutes, DoD directives, and Service regulations that protect Service members more generally.391

c. Sexual Assault Response Personnel

SARCs from each Service generally agreed that the SVC programs are valuable to victims and that 

victims have responded favorably to the program.392 The SARCs felt that the role of the SVC was 

complementary to their own, in that attorneys can provide legal advice and explain the military justice 

process to victims, filling what had been a gap in services.393 Some SARCs told the JPP that they engage 

the SVC to assist in training victim advocates.394

Noting that SVCs are not part of the Sexual Assault Prevention and Response or Victim and Witness 

Assistance Programs, several SARCs explained that SVCs perform functions previously performed 

by victim advocates. Before the SVC program existed, victim advocates updated victims regularly on 

the status of their cases and the timing of upcoming hearings or pretrial interviews. Now SVCs do so, 

and clients and SVCs do not always inform victim advocates about case proceedings.395 That SVCs 

were not co-located with SARCs and victims was a concern, in particular for the Air Force and Coast 

Guard, where SVCs are assigned regionally rather than at each installation.396 SARCs observed that 

Marine Corps, Regional Victims’ Legal Counsel).

387 Transcript of JPP Public Meeting 153 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

388 Transcript of JPP Public Meeting 171 (Nov. 14, 2014) (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel).

389 Transcript of JPP Public Meeting 84 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in 

Charge, Victims’ Legal Counsel Organization).

390 Transcript of JPP Public Meeting 268–69 (Dec. 12, 2014) (testimony of Lt Gen Christopher F. Burne, The Judge Advocate 

General, U.S. Air Force). 

391 See Services’ Responses to JPP Request for Information 27 (Nov. 6, 2014).

392 See generally Transcript of JPP Public Meeting 49 (Dec. 12, 2014) (testimony of Ms. Phylista Dudzinski, Sexual Assault 

Response Coordinator, U.S. Air Force); id. at 53 (testimony of Ms. Simone Hall, Sexual Assault Response Coordinator, 

U.S. Coast Guard); id. at 66 (testimony of Ms. Gloria M. Arteaga, Sexual Assault Response Coordinator, U.S. Navy).

393 Transcript of JPP Public Meeting 57 (Dec. 12, 2014) (testimony of Ms. Marie A. Brodie, Sexual Assault Response 

Coordinator, U.S. Marine Corps).

394 Id. at 62; id. at 69 (testimony of Ms. Gloria M. Arteaga, Sexual Assault Response Coordinator, U.S. Navy). 

395 Transcript of JPP Public Meeting 49–50 (Dec. 12, 2014) (testimony of Ms. Phylista Dudzinski, Sexual Assault Response 

Coordinator, U.S. Air Force); id. at 70 (testimony of Ms. Gloria M. Arteaga, Sexual Assault Response Coordinator, U.S. 

Navy); id. at 57 (testimony of Ms. Marie A. Brodie, Sexual Assault Response Coordinator, U.S. Marine Corps). 

396 Transcript of JPP Public Meeting 50–51 (Dec. 12, 2014) (testimony of Ms. Phylista Dudzinski, Sexual Assault Response 

Coordinator, U.S. Air Force); id. at 54–55 (testimony of Ms. Simone Hall, Sexual Assault Response Coordinator, U.S. 

Coast Guard).
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a lack of face-to-face interaction may create problems between attorney and client or delay initial 

interviews by criminal investigators.397

d. Military Criminal Investigators

Criminal investigators testified that the SVC program enhanced victims’ abilities to come forward, 

present key details, and understand the investigative process.398 Investigators told the JPP that they 

often actively engage with SVCs because they are required by service regulations to brief victims 

regularly on the status of an investigation.399 An Army investigator told the JPP that SVCs often ask to 

receive the information rather than have the investigators approach represented victims directly.400

Several presenters noted that the involvement of an SVC may lead to investigative delays.401 Since 

SVCs began representing victims during investigations, investigators have experienced more delays, 

sometimes lasting days or weeks, before conducting initial interviews, and they have more frequently 

observed victims refusing to provide a written or recorded statement to investigators or to allow access 

to digital media devices.402 In a positive development, investigators also noted that because the SVCs 

have allayed victims’ worries about the consequences of collateral misconduct, sometimes victims are 

less hesitant to cooperate with investigators.403

e. Trial Counsel

Trial counsel discussed both favorable experiences and challenges they have faced since the advent 

of the SVC program. While stating that he viewed the program as “overwhelmingly positive,” an 

Air Force trial counsel commented that the biggest improvement he has seen since the program was 

established is its positive effect on victims now that they have their own counsel to “stick up for them,” 

accompany them to interviews and proceedings, and help them understand the process.404 An Army 

397 Transcript of JPP Public Meeting 54–55 (Dec. 12, 2014) (testimony of Ms. Simone Hall, Sexual Assault Response 

Coordinator, U.S. Coast Guard); Transcript of JPP Public Meeting 50–51 (Dec. 12, 2014) (testimony of Ms. Phylista 

Dudzinski, Sexual Assault Response Coordinator, U.S. Air Force).

398 See Transcript of JPP Public Meeting 268, 270 (Nov. 14, 2014) (testimony of Mr. Mike Defamio, Supervisory Special 

Agent, U.S. Navy Criminal Investigative Service (NCIS)); id. at 259 (testimony of Mr. James W. Boerner, Special Agent, 

U.S. Army Criminal Investigative Command (CID)).

399 Transcript of JPP Public Meeting 259 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, U.S. Army 

Criminal Investigative Command (CID)); U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response

(SAPR) Program Procedures encl. 5.3(m) (Feb. 12, 2014) (requiring commanders to direct that DoD law enforcement 

agents and VWAP personnel provide victims of sexual assault who elect an unrestricted report the information outlined in 

DoDD 1030.01 throughout the investigative and legal process).

400 See Transcript of JPP Public Meeting 259–60 (Nov. 14, 2014) (testimony of Mr. James W. Boerner, Special Agent, U.S. 

Army Criminal Investigative Command (CID)). 

401 See Transcript of JPP Public Meeting 268 (Nov. 14, 2014) (testimony of Mr. Mike Defamio, Supervisory Special Agent, 

U.S. Naval Criminal Investigative Service (NCIS)); id. at 313-14 (testimony of Mr. Mark Walker, Special Agent, U.S. Air 

Force Office of Special Investigations (AFOSI)); id. at 344 (testimony of CPT Sarah Robbins, U.S. Army, Trial Defense 

Counsel).

402 See Transcript of JPP Public Meeting 282–84 (Nov. 14, 2014) (testimony of Mr. Mark Walker, Special Agent, U.S. Air 

Force Office of Special Investigations (AFOSI)); id. at 268, 285 (testimony of Mr. Mike DeFamio, Supervisory Special 

Agent, U.S. Navy Criminal Investigative Service (NCIS)).

403 See Transcript of JPP Public Meeting 269 (Nov. 14, 2014) (testimony of Mr. Mark Walker, Special Agent, U.S. Air Force 

Office of Special Investigations (AFOSI)). 

404 See Transcript of JPP Public Meeting 396–98 (Nov. 14, 2014) (testimony of Maj Brent Jones, U.S. Air Force, Senior Trial 
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

trial counsel explained that SVCs provide clarity and decisive feedback to the prosecution regarding 

the victim’s wishes, particularly during plea negotiations.405 A Navy trial counsel described mixed 

experiences with various SVCs but added that these experiences were no different from his experiences 

with various defense counsel.406

A Coast Guard trial counsel highlighted the importance of SVC confidentiality while detailing how an 

SVC can explain the strengths and weaknesses of a case to the client without being perceived as trying 

to persuade or dissuade the victim from proceeding.407 A Marine prosecutor added that “much to [his] 

surprise,” the program has been extremely positive and is a “force multiplier” in the military justice 

system. The same prosecutor also noted that SVCs increased the comfort level and trust of victims, 

who know that the SVC has only one duty—to represent them.408

Trial counsel also explained the new challenges they face as a result of the SVC program. A Navy trial 

counsel expressed a consensus view among presenters that they now have less direct communication 

with victims. 409 Once a victim obtains SVC representation, according to practitioners, trial counsel 

no longer feel able to consult with a victim, even on routine matters, without first going through the 

SVC. The Navy counsel explained that “once SVC is assigned in a case and my office is notified of that 

representation, we no longer will ever directly contact that victim.”410 An Army prosecutor echoed this 

position, citing his state bar’s rules of professional conduct.411 As described by the Navy counsel, 

Now, as a perhaps unintended consequence of the presence of VLC, a lot of that 

rapport building is taken away and not available to the prosecutor. There was a natural 

trust that was formed between the victim and the prosecutor when the prosecutor was 

the answer source. And naturally as the victim relies on and trust the VLC, they rely 

less on the prosecutor.412

As a result, case status updates from a prosecutor or questions from a prosecutor in preparation for 

trial are now provided to a victim through the SVC.413 A Coast Guard trial counsel observed that this 

Counsel).

405 See Transcript of JPP Public Meeting 381 (Nov. 14, 2014) (testimony of LTC Scott Hutmacher, U.S. Army, Special Victim 

Prosecutor).

406 See Transcript of JPP Public Meeting 386–87 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior 

Trial Counsel).

407 Transcript of JPP Public Meeting 401 (Nov. 14, 2014) (testimony of LT Jeffrey C. Barnum, U.S. Coast Guard, Trial Counsel).

408 Transcript of JPP Public Meeting 394–95 (Nov. 14, 2014) (testimony of Maj Douglas C. Hatch, U.S. Marine Corps, Senior 

Complex Trial Counsel).

409 See Transcript of JPP Public Meeting 386–87, 402 (Nov, 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, 

Senior Trial Counsel).

410 See Transcript of JPP Public Meeting 384 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial 

Counsel); see also id. 402 (testimony of LT Jeffrey C. Barnum, U.S. Coast Guard, Trial Counsel). 

411 See Transcript of JPP Public Meeting 391 (Nov. 14, 2014) (testimony of Maj Douglas C. Hatch, U.S. Marine Corps, 

Senior Complex Trial Counsel); see also Army SVC Handbook, supra note 198, ch. 4 (referencing Army Rule of 

Professional Conduct 4.2).

412 Transcript of JPP Public Meeting 385–86 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial 

Counsel).

413 See id. at 385 (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial Counsel); see also id. at 392 (testimony of 

Maj Douglas C. Hatch, U.S. Marine Corps, Senior Complex Trial Counsel).
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intermediation could present a problem when the prosecutor and SVC disagree on an appropriate case 

strategy.414

A common theme expressed by trial counsel was the issue of inexperienced SVCs. While noting that 

an inexperienced SVC does not necessarily impede the prosecution, the Army trial counsel stated that 

lack of experience could “hamper the intent of their client wanting to voice how [the sexual assault] 

has impacted on them, the violation on them, et cetera.”415 The Coast Guard trial counsel described 

times when “SVCs have set back prosecutions, either by failing to understand their client’s goals or the 

military justice process.”416

Overall, trial counsel agreed that the SVC program did not hamper their ability to prosecute cases.417

When asked whether they were better or worse off in terms of doing their job since the establishment 

of the SVC program, a Marine trial counsel observed that it doesn’t matter “whether it makes our job 

easy or not. The fact of the matter is that our job is made easier in some respects and more difficult 

in some respects. It balances itself out, and in the end, you have a victim that’s better taken care of 

through the system and I think that’s really the take-away.”418

f. Defense Counsel

The JPP heard assessments from military defense counsel of their relationships with SVCs in the 

military justice system. While the defense counsel characterized their interactions with SVCs as 

professional, each had concerns with the program ranging from SVC experience levels to how certain 

aspects of the program have amounted to a shift in the balance of justice and fairness.419 An Army 

defense counsel detailed her interactions with an SVC on a typical case and described a recent case 

on which she worked with two SVCs extensively. Noting that neither SVC had prior military justice 

experience, she explained how this inexperience resulted in unnecessary delays in the trial due to the 

SVCs’ not understanding the fundamentals of trial practice and client representation. But the counsel 

added that she has used such experiences to help educate the SVCs on case law, rules of practices, and 

other military justice standards, and doing so has “garnered much more trust and effective working 

relationships between the SVCs and the defense counsel.”420

414 See Transcript of JPP Public Meeting 401 (Nov. 14, 2014) (testimony of LT Jeffrey C. Barnum, U.S. Coast Guard, Trial 

Counsel); id. at 392–93 (testimony of Maj Douglas C. Hatch, U.S. Marine Corps, Senior Complex Trial Counsel). 

415 Transcript of JPP Public Meeting 404 (Nov. 14, 2014) (testimony of LTC Scott Hutmacher, U.S. Army, Special Victim 

Prosecutor).

416 Transcript of JPP Public Meeting 401 (Nov. 14, 2014) (testimony of LT Jeffrey C. Barnum, U.S. Coast Guard, Trial 

Counsel).

417 See generally Transcript of JPP Public Meeting 406 (Nov. 14, 2014) (testimony of LTC Scott Hutmacher, U.S. Army, 

Special Victim Prosecutor); id. at 417 (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial Counsel); id. at 405 

(testimony of Maj Douglas C. Hatch, U.S. Marine Corps, Senior Complex Trial Counsel); id. (testimony of LT Jeffrey C. 

Barnum, U.S. Coast Guard, Trial Counsel).

418 Transcript of JPP Public Meeting 405 (Nov. 14, 2014) (testimony of Maj Douglas C. Hatch, U.S. Marine Corps, Senior 

Complex Trial Counsel). 

419 See generally Transcript of JPP Public Meeting 323–24 (Nov. 14, 2014) (testimony of Maj William Babor, U.S. Air Force, 

Senior Defense Counsel); id. at 331 (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense Counsel); id. at 336–37 

(testimony of Maj Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel); id. at 345–46 (testimony of CPT Sarah 

Robbins, U.S. Army, Trial Defense Counsel).

420 Transcript of JPP Public Meeting 343–44 (Nov. 14, 2014) (testimony of CPT Sarah Robbins, U.S. Army, Trial Defense 

Counsel).
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III. SPECIAL VICTIMS’ COUNSEL PROGRAMS

An Air Force defense counsel observed that the SVC’s role during defense interviews has “shift[ed] the 

balance of fairness when it comes to defense interviews of victims.” He explained that SVCs actively 

participate and coach victims during interviews and place superficial time limits on them. He also 

stated that SVCs have limited discussion or have completely stopped interviews when subjects of bias, 

prejudice, or motive to misrepresent arose and that, in some instances, SVCs have refused defense 

interviews of the victim while still allowing such interviews with the prosecution.421

The Air Force counsel also explained that “inherently the SVC is at an adverse position to the military 

accused and the defense counsel,” adding that the positions of the SVC and their client “are more 

closely aligned with that of the prosecutor” and that “some SVCs could appear to become de facto 

members of the prosecution.”422 When asked by the JPP how he would change the system to provide 

better balance in the justice system, the counsel stated, “I don’t think that necessarily limiting SVCs is 

going to be the way to go”; instead, he proposed other counterbalances in favor of the accused such 

as requiring unanimous verdicts, panel members of an accused’s peers, and panel members selected by 

someone other than a commander who has authority over the accused.423

A Navy defense counsel, while noting that he did not believe the entire justice system was broken, said, 

“I believe that the current climate has amounted to somewhat of a shift.” The counsel said, “While the 

government has an array of investigators, advocates, special prosecutors, command representatives, 

victim advocates, and so forth, and you’ve heard here, unprecedented efforts to integrate the 

complaining witness into the process, my clients lack access to investigative support, administrative 

support, and must request any additional support, including experts, from the very officer who has 

referred charges against him, often through the prosecutor who is seeking to take away his liberty.”424

The counsel said that “we have noted several areas where we believe that the presence of the VLCs has 

the potential to impact our client’s liberty and their constitutional rights. One of the areas is just an 

issue of fundamental fairness.” He detailed complaints with the program, including (1) an SVC being 

made available to a victim “even prior to an official report being made,” while defense counsel are 

generally not assigned to an accused until charges are preferred; (2) the SVC program having its own 

line of travel accounting, while defense services must request funding though the convening authority; 

(3) SVCs limiting the defense’s ability to conduct pretrial interviews of victims; and (4) SVCs, in some 

situations, actively working to perfect the government’s case against his clients.425

The counsel explained why SVCs’ working with trial counsel is a problem: “[W]hile a trial counsel 

or even a member of a military criminal investigation organization has an obligation to turn over any 

exculpatory material to the defense, the victim’s legal counsel has no such obligation.” The counsel 

said an SVC could argue that such material is protected by privilege, which “creates an issue with 

respect to fundamental fairness and whether material is being filtered through the victim’s legal counsel 

organization.” He raised the resulting question about how such information, if not attorney-client 

privileged and discoverable, can be obtained by the defense counsel.426

421 Transcript of JPP Public Meeting 323–25 (Nov. 14, 2014) (testimony of Maj William Babor, U.S. Air Force, Senior 

Defense Counsel).

422 Id. at 323. 

423 Id. at 364. 

424 Transcript of JPP Public Meeting 367, 327 (Nov. 14, 2014) (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense 

Counsel).

425 Id. at 327–31, 350–51. 

426 Id. at 331, 365–66. 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
83

Rights and Needs of Sexual Assault Victims 

Throughout the Judicial Process IV.

A. VICTIMS’ RIGHTS UNDER THE UCMJ

In October 2004, Congress passed the Crime Victims’ Rights Act (CVRA), which was the culmination 

of “a long effort to afford greater deference to victims in the criminal justice process.”427 The CVRA, 

which granted rights to all “crime victims,” mirrored other victims’ bills of rights spelled out in various 

state laws and supplemented other specific victims’ rights under federal law.428 The CVRA did not 

expressly state whether it applied to crime victims of federal offenses prosecuted under the UCMJ.

In Section 1701 of the FY14 NDAA, Congress codified eight rights for all crime victims in the military 

justice process as Article 6b of the UCMJ: 

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any of the following:

a. A public hearing concerning the continuation of confinement prior to trial of 

the accused.

b. A preliminary hearing under section 832 of this title (article 32) relating to the 

offense.

c. A court-martial relating to the offense.

d. A public proceeding of the service clemency and parole board relating to the 

offense.

e. The release or escape of the accused, unless such notice may endanger the 

safety of any person.

(3) The right not to be excluded from any public hearing or proceeding described in 

paragraph (2) unless the military judge or investigating officer, as applicable, after 

receiving clear and convincing evidence, determines that testimony by the victim of 

an offense under this chapter would be materially altered if the victim heard other 

testimony at that hearing or proceeding.

(4) The right to be reasonably heard at any of the following:

a. A public hearing concerning the continuation of confinement prior to trial of 

the accused.

b. A sentencing hearing relating to the offense.

c. A public proceeding of the service clemency and parole board relating to the 

offense.

427 Charles Doyle, Cong. Research Serv., Crime Victims’ Rights Act; A Summary and Legal Analysis of 18 U.S.C. § 3771, at 

1 (2012).

428 Id. at 1. A “crime victim” is “a person directly and proximately harmed as a result of the commission of a Federal offense 

or an offense in the District of Columbia.” 18 U.S.C. § 3771 (e) (2012).
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(5) The reasonable right to confer with the counsel representing the Government at 

any proceeding described above.

(6) The right to receive restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the dignity and privacy of 

the victim of an offense under this chapter.

429

Within one year, Section 1701 required the Secretary of Defense to recommend to the President 

changes to the Manual for Courts-Martial and to prescribe regulations to implement these rights. 

Implementing regulations must include

(A) Mechanisms for ensuring that victims are notified of, and accorded, the rights 

specified in Article 6b of the Uniform Code of Military Justice.

(B) Mechanisms for ensuring that members of the Armed Forces and civilian personnel 

of the Department of Defense and the Coast Guard make their best efforts to 

ensure that victims are notified of, and accorded, the rights specified in Article 6b 

of the Uniform Code of Military Justice.

(C) Mechanisms for the enforcement of such rights, including mechanisms for 

application for such rights and for consideration and disposition of applications for 

such rights.

(D) The designation of an authority within each Armed Force to receive and investigate 

complaints relating to the provision or violation of such rights.

(E) Disciplinary sanctions for members of the Armed Forces and other personnel of the 

Department of Defense and Coast Guard who willfully or wantonly fail to comply 

with requirements relating to such rights.430

Although Section 1701’s one-year deadline to establish guidance has passed, DoD and the Services 

are continuing to develop policy and establish practices to provide for the rights incorporated under 

Article 6b. 

The JPP heard from witnesses and reviewed materials and submissions regarding the rights and needs 

of sexual assault victims during the judicial process. Specifically, the JPP reviewed policies and practices 

regarding victims’ notice and access to case information, the rights of victims to be reasonably heard 

and participate in courts-martial, and the ability of victims to challenge possible violations of their 

rights through interlocutory appeal. 

429 FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013).

430 Id.
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IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGHOUT THE JUDICIAL PROCESS

B. VICTIMS’ NOTICE AND ACCESS TO INFORMATION

A civilian victims’ rights expert who appeared at the November JPP public meeting characterized 

victim access to information as “among the most critical components of protecting victims’ rights 

that exist.” She explained, “Everyone in th[e] system has to have access to similar, if not equivalent 

information throughout” the proceedings, including after conviction.431 Victims and their counsel 

require timely access to sufficient information about a case for two principal reasons. First, a victim’s 

counsel must be reasonably aware of what is happening in a case in order to advise the client of his or 

her rights and on the best course of action. At the same time, a victim who lacks sufficient information 

about the scope and context of what is discussed in a proceeding cannot knowingly and voluntarily 

assert or waive his or her rights.432

Historically, victims of crimes in the military justice system have not been afforded the same access 

to case information as prosecutors and defense counsel. The newly enacted Article 6b, however, 

establishes opportunities for military victims and their counsel to obtain information about their case. 

Article 6b guarantees victims the “right to reasonable, accurate, and timely notice” of proceedings 

during the court-martial process; the right to be reasonably heard on pretrial confinement, sentencing, 

or parole hearings; and the right to confer with the counsel for the government on such proceedings. 

But Article 6b does not specify what information is needed by victims to adequately or reasonably 

provide for these rights and how to access that information. Instead, Section 1701 requires DoD and 

the Services to establish mechanisms to provide for, enforce, and resolve complaints about victims’ 

rights.433

1. Regulations and Policies Regarding Victim Access to Information 

To meet the requirements of Section 1701, the military Services have developed and implemented 

new policies and procedures that will ensure better access to case information for victims and their 

counsel. No uniform policy for access to information exists among the Military Departments, but each 

Service has adopted procedures and requirements ranging from policy memos from the Judge Advocate 

General (TJAG) to “official use” request exceptions under the Privacy Act to provide victims with 

access to various documents relating to their cases.

In the Air Force, following recent Air Force JAG Corps policy guidance, SVCs now use an “officialuse request mechanism” under an exception to the Privacy Act to obtain some case documents that 

would otherwise be restricted, such as ongoing investigation reports from the Air Force Office of 

Special Investigations.434 The release of records under the Privacy Act’s 5 U.S.C. § 552a(b)(1) exception 

depends on which documents the SVC requests and the justification as to why they are needed. SVCs 

431 Transcript of JPP Public Meeting 17–18 (Nov. 14, 2014) (testimony of Ms. Meg Garvin, Executive Director, National 

Crime Victim Law Institute); see also id. at 22–23 (testimony of Mr. Michael Andrews, Project Director and Managing 

Attorney, District of Columbia Crime Victims’ Resource Center) (agreeing that “the same access to information” is 

“crucial” and adding that information must not be “filtered” or “watered down” by a third party).

432 Transcript of JPP Public Meeting 18 (Nov. 14, 2014) (testimony of Ms. Meg Garvin, Executive Director, National Crime 

Victim Law Institute); see also id. at 21–22 (testimony of Mr. Michael Andrews, Project Director and Managing Attorney, 

District of Columbia Crime Victims’ Resource Center) (“How else are we going to counsel our clients if we don’t have the 

same access to information as all of the parties that have been licensed to practice before the tribunal[?]”).

433 FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013).

434 Special Victims’ Counsel Requests for Air Force Records Under the Privacy Act and Freedom of Information Act, 

Op. JAG, Air Force, No. 2014/3 (July 1, 2014), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/04-SVC_

VictimAccess/20150116/34_OpJAGAF_SVC_ReqforRecords_PA_FOIA_20140701.pdf.
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cannot provide protected information to their clients, but they can use the information to shape 

their strategies of representation and their assessments of cases. The JPP heard testimony that this 

mechanism is still being refined and its application remains uneven.435 For example, the Air Force 

Office of Special Investigations (AFOSI) maintains that their regulations prohibit disclosure of open 

reports of investigation to SVCs.436

The Army issued its policy regarding the disclosure of information to crime victims on October 1, 

2014. Under the Army policy, trial counsel shall provide the victim and SVC, if applicable, with the 

following (a request is not necessary):

(a) Upon preferral of charges: A copy of all statements and documentary evidence 

produced or provided by the victim; an excerpt of the charge sheet setting forth 

the preferred specifications pertaining to that victim; and the date, time, and 

location of any pretrial confinement review pursuant to R.C.M. 305, and the 

preliminary hearing pursuant to Article 32, UCMJ.

(b) Upon receipt or filing by the government: A summarized transcript of the 

victim’s testimony at the preliminary hearing; an excerpt of the charge sheet 

setting forth the referred specifications pertaining to that victim; any docket 

requests, as well as docketing or scheduling orders, including deadlines for 

filing motions and the date, time, and location for any session of trial; a copy 

of any motion or responsive pleadings that may limit a victim’s ability to 

participate in the court-martial, affect the victim’s possessory rights in any 

property, concern the victim’s privileged communications or private medical 

information, or involve the victim’s right to be heard; and any request to 

interview the victim received from defense counsel.437

The policy itself notes that it “is not intended to, and does not, create any entitlement, cause of action, 

or defense in favor of any person arising out of the failure to accord a victim the notice outlined in 

this policy.”438 Shortly after the issuance of the Army’s policy, the Marine Corps and the Coast Guard 

issued similar policies for disclosing information to victims.439

435 Transcript of JPP Public Meeting 238–40 (Nov. 14, 2014) (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ 

Counsel).

436 Transcript of JPP Public Meeting 105 (Nov. 14, 2014) (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, 

Special Victims’ Counsel Division); see also id. at 306 (testimony of Mr. Mark Walker, Special Agent, Air Force Office 

of Special Investigations) (“Our investigations are open until prosecution, declination, until the resolution of the case. 

And once that resolution of the case is done, it is—our case is now closed. And that case is now available for Freedom 

of Information Act requests. Prior to that, we provide all of our information to the Staff Judge Advocate’s office for 

dissemination to the defense.”).

437 Policy Memorandum 14-09, Office of the Judge Advocate General, U.S. Army, subject: Disclosure of Information to Crime 

Victims (Oct. 1, 2014), available at http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q14_USA.pdf; 

see also Transcript of JPP Public Meeting 253–54, 306 (Dec. 12, 2014) (testimony of LTG Flora D. Darpino, The Judge 

Advocate General, U.S. Army) (describing TJAG Policy Memo to Panel and noting that immediately upon issuance, she 

e-mailed the memo to her fellow Judge Advocates General for their consideration).

438 Policy Memorandum 14-09, Office of the Judge Advocate General, U.S. Army, subject: Disclosure of Information to Crime 

Victims ¶ 5 (Oct. 1, 2014).

439 U.S. Marine Corps, Military Justice Branch, Practice Advisory No. 4-14, Disclosure of Information to Crime Victims

(Nov. 5, 2014), available at http://www.hqmc.marines.mil/Portals/135/Docs/JAM/Practice%20Advisory%204-14%20

-%20Release%20of%20Information%20to%20Victims.pdf; Memorandum 5810, Judge Advocate General, U.S. Coast 

Guard, subject: Disclosure of Information to Crime Victims (Oct. 28, 2014), available at http://jpp.whs.mil/Public/docs/
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IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGHOUT THE JUDICIAL PROCESS

The Navy is currently drafting an official policy regarding the release of information to crime victims. 

Until this policy is developed, Navy senior trial counsel are following in practice the Army TJAG 

Policy of October 1, 2014. Before charges are referred, other requests for information in Navy cases 

not covered by this policy are made directly by the SVC or VLC to the trial counsel.440 In cases 

when VLC access to pleadings is denied by the court, VLCs have filed Freedom of Information Act 

(FOIA) requests and appealed to higher military authorities.441 After referral, a motion for access to 

information may be filed directly with the military judge.442 In addition to JAG Corps guidance, at least 

one Navy-Marine Corps judicial circuit has also developed and implemented specific requirements 

for notifying victims and victims’ counsel. These circuit rules require trial counsel to serve copies of 

scheduling orders on all counsel for all parties, including any independent counsel or victim advocate 

who represents a victim in the case.443 These rules require service of “motions involving non-parties” 

and motions raising M.R.E. 412 and M.R.E. 513 issues.444

2. Victims’ Notice and Access to Case Information in Practice

Notwithstanding Article 6b’s mandates and the recent development of Service policies, victim access 

to case information remains inconsistent. Some SVCs told the JPP that they generally receive sufficient 

notice and access to information to adequately represent their clients.445

On the other hand, several victims’ counsel testified that in their experience, some military trial counsel 

fail to provide victims’ counsel with certain case materials and information.446 More specifically, 

victims’ counsel continue to experience difficulty in obtaining case documents such as pleadings, 

discovery, Article 32 investigation officers’ reports, and reports of investigation (ROIs) by military 

RFI/Set_1/Encl13-25/RFI_Enclosure_Q14_USCG.pdf. The Coast Guard policy mirrors the Army policy in adding the 

qualification that it does not create any entitlement arising out of failure to implement the policy.

440 Transcript of JPP Public Meeting 406–09, 411–12 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, 

Senior Trial Counsel); see also Navy and Marine Corps’ Responses to JPP Requests for Information 14, 17 (Nov. 6, 2014).

441 See, e.g., Transcript of JPP Public Meeting 233–34 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, 

Regional Victims’ Counsel).

442 Navy’s and Marine Corps’ Responses to JPP Requests for Information 16 (Nov. 6, 2014).

443 See, e.g., U.S. Dep’t of Navy, Navy-Marine Corps Trial Judiciary, Europe, Africa, and Southwest Asia Circuit 24 (Apr. 

3, 2014) (Rule 33.7) [hereinafter Navy-Marine Corps EURAFSWA Circuit Rules], available at http://www.jag.navy.mil/

courts/documents/EURAFSWA_CIRCUIT_RULES_OF_PRACTICE.pdf.

444 See, e.g., id. at 24 (Rules 33.5 and 33.7).

445 Transcript of JPP Public Meeting 236 (Nov. 14, 2014) (testimony of CPT Jesse S. Sommer, U.S. Army, Special Victims’ 

Counsel); id. at 175 (testimony of LCDR Kismet Wunder, U.S. Coast Guard, Special Victims’ Counsel); see also Transcript 

of JPP Public Meeting 166 (Dec. 12, 2014) (testimony of LT Kathryn DeAngelo, U.S. Navy, Victims’ Legal Counsel) 

(stating “no one expects that we [VLCs] will ever have access to everything”).

446 Written Statement of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP, to JPP paras. 7, 8 (Oct. 10, 2014); Transcript of 

JPP Public Meeting 287, 316 (Oct. 10, 2014) (testimony of Ms. Miranda Petersen, Program & Policy Director, Protect 

Our Defenders); id. at 273–74, 288–89 (testimony of Mr. Guilds) (testifying that this was not his experience in civilian 

jurisdictions and suggesting that military trial counsel are simply “used to the [military’s] closed docketing system”); 

Transcript of JPP Public Meeting 89–90 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, U.S. Marine Corps, Officer in 

Charge, Victims’ Legal Counsel Organization) (alleging common practice of VLCs being provided documents for first time 

while victim on witness stand at Article 32 hearings and asked to adopt them); see also Transcript of JPP Public Meeting

11–12 (Dec. 12, 2014) (testimony of Col Don Christensen, U.S. Air Force (Retired), President, Protect Our Defenders) 

(testifying that “SVCs face a continual struggle . . . to receive evidence needed to represent survivors, to have access to 

motions filed by the parties, or to be consulted prior to the scheduling of Article 32 hearings, Article 39(a) sessions, or the 

court itself”).
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criminal investigative organizations.447 For example, the Air Force SVC Program Manager testified that 

SVCs “do not receive discovery and relevant pleadings consistently,”448 while a senior Marine Corps 

VLC told the JPP that some military investigative agents “will not provide [VLCs] with anything.”449

Presenters observed that before victim rights were established under Article 6b, a counsel’s ability 

to obtain case information and documents on behalf of a victim client often depended on his or 

her personal relationship with the other parties to the case. One presenter told the JPP that the new 

requirements and guidance have not changed this dynamic. Contending that the current rules regarding 

victims’ access to information are “vague,” he explained that the ability of SVCs “to effectively 

represent their clients is solely dependent upon [their] personal relationships with . . . trial counsel, 

defense counsel, and the military criminal investigators.”450 Another witness noted specific defects 

in production requirements. While she applauded the FY14 NDAA’s requirement that victims be 

provided a record of trial, she advised the JPP that the requirement should be further extended to also 

provide records for courts-martial to the victim in cases that result in acquittal.451

Several military counsel specified the extent of victims’ access to case documents.452 Some senior 

military trial and defense counsel also testified that victims’ counsel were provided certain motions, 

but not others. When asked to explain why, the counsel cited past practice and the lack of written 

requirements to produce the information.453 Two of the attorneys raised the concern that providing 

447 Transcript of JPP Public Meeting 233–34 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Counsel) (testifying that in his experience, FOIA (Freedom of Information Act) requests must be filed for reports 

of Article 32 investigation or NCIS investigation, and that by time requests are processed and documents are received, 

court-martial is over); Transcript of JPP Public Meeting 165–66 (Dec. 12, 2014) (testimony of LT Kathryn DeAngelo, U.S. 

Navy, Victims’ Legal Counsel) (testifying that she is “never” provided prosecutorial merit review, which makes it “so much 

more difficult to advise a client regarding, for instance, her input to the convening authority on initial disposition”). 

448 Transcript of JPP Public Meeting 105–07 (Nov. 14, 2014) (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, 

Chief, Special Victims’ Counsel Division).

449 Transcript of JPP Public Meeting 152 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

450 Transcript of JPP Public Meeting 180–81 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, Regional 

Victims’ Counsel).

451 Transcript of JPP Public Meeting 105–07 (Nov. 14, 2014) (testimony of Lt Col Andrea M. deCamara, U.S. Air Force, 

Chief, Special Victims’ Counsel Division). Noting that such records are currently summarized in the Air Force, depriving 

victims of the opportunity to hear the evidence and arguments resulting in the acquittal, this presenter argued that the 

victim should be provided either a verbatim transcript or an audiotape of the court-martial. Id.

452 Transcript of JPP Public Meeting 334–35 (Nov. 14, 2014) (testimony of Maj Kyle Kilian, U.S. Marine Corps, Senior 

Defense Counsel) (testifying that VLCs routinely receive such pretrial documents as discovery timelines and victim requests 

as well as notice of hearings, pretrial negotiations, and trial dates); id. at 387 (testimony of LCDR Philip J. Hamon, Senior 

Trial Counsel, U.S. Navy) (testifying that VLCs are provided all scheduling orders, the charge sheet, all victim statements, 

any investigators’ summaries of interviews, and all M.R.E. 412 and M.R.E. 513 motions along with any enclosures and 

any responses thereto, as well as “additional information on a case by case basis, depending on the circumstances”); 

Transcript of JPP Public Meeting 374, 384–86 (Oct. 10, 2014) (testimony of MAJ Rebecca DiMuro, U.S. Army, Special 

Victim Prosecutor) (citing Policy Memorandum 14-09, Office of the Judge Advocate General, U.S. Army, subject: 

Disclosure of Information to Crime Victims (Oct. 1, 2014) (requiring that SVCs and their clients receive summarized or 

verbatim transcript of their clients’ testimony at Article 32 hearing)).

453 Transcript of JPP Public Meeting 411–12 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial 

Counsel); id. at 413 (testimony of LTC Scott Hutmacher, U.S. Army, Special Victim Prosecutor); id. at 357–61 (testimony 

of Maj Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel) (noting that amended Article 6b requires merely 

“reasonable and accurate notice” and testifying that defense counsel decide on case-by-case basis what is in accused’s 

best interest and that service of pleadings to VLCs sometimes is not); see also Transcript of JPP Public Meeting 304–06 

(Dec. 12, 2014) (testimony of LTG Flora D. Darpino, The Judge Advocate General, U.S. Army, and VADM Nanette M. 

DeRenzi, Judge Advocate General, U.S. Navy) (identifying access to information as one of the principal two challenges 
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documents, such as other witnesses’ statements, could affect the victim’s testimony.454 Nevertheless, 

some counsel told the JPP that they personally would not object to an electronic docketing system in 

which all unsealed pleadings are publicly available.455

In contrast, other military counsel indicated that SVCs are advised of and included in Article 32 

hearings and any hearings involving M.R.E. 412 or M.R.E. 513 issues.456 A Navy senior trial counsel 

told the JPP that trial counsel in his practice consult with VLCs prior to docketing conferences to 

ensure that the VLC is available for proposed trial dates.457 Trial counsel described the care with which 

they exercised their prosecutorial discretion in deciding how much and what case information to 

provide to victims’ counsel.458

C. VICTIMS’ RIGHT TO BE REASONABLY HEARD

1. Background

Article 6b guarantees the right of victims to receive notice of, and not to be excluded from, certain 

specified judicial proceedings. This right extends to pretrial confinement hearings (if any), Article 32 

hearings, court-martial proceedings, and parole hearings. As noted above, the right of a victim to be 

present at proceedings may not be limited unless a court determines by clear and convincing evidence 

“that testimony by the victim would be materially altered if the victim heard other testimony at that 

proceeding.”459

currently faced by their Services’ respective victims’ counsel programs).

454 Transcript of JPP Public Meeting 410 (Nov. 14, 2014) (testimony of Maj Brent Jones, U.S. Air Force, Trial Counsel); id. at 

331–32 (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense Counsel).

455 Transcript of JPP Public Meeting 413 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial 

Counsel); id. at 331–32 (testimony of LCDR Nate Gross, U.S. Navy, Senior Defense Counsel); see also Transcript of 

JPP Public Meeting 313–15 (Dec. 12, 2014) (testimony of Lt Gen Christopher F. Burne, The Judge Advocate General, 

U.S. Air Force) (noting that creation of electronic docketing system currently is being considered in Air Force, with 

recommendations forthcoming in first half of 2015); id. at 119–20 (testimony of Ms. Marie A. Brodie, Installation Sexual 

Assault Response Coordinator (SARC) (supporting proposal of electronic docketing in military system).

456 Transcript of JPP Public Meeting 380–83 (Oct. 10, 2014) (testimony of MAJ Rebecca DiMuro, U.S. Army, Special Victim 

Prosecutor) (testifying that SVCs “definitely get 412 and 513 pleadings,” usually are listed on the electronic docketing 

request once assigned, “simply maintain a status on correspondence with all the counsel,” and “certainly . . . can come 

to any hearing” and are “always notified whenever we are going to go into session”); Transcript of JPP Public Meeting

379–81 (Nov. 14, 2014) (testimony of LTC Scott Hutmacher, U.S. Army, Special Victim Prosecutor) (testifying that in his 

experience, SVCs are “absolutely included” at M.R.E. 412 and M.R.E. 513 hearings as well as at R.C.M. 802 sessions, 

including hearing scheduling); id. at 334–35 (testimony of Maj Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel) 

(testifying that he could not recall an Article 32 hearing at which the VLC was not present); id. at 344 (testimony of CPT 

Sarah Robbins, U.S. Army, Trial Defense Counsel) (testifying that SVCs assigned to her cases had been “present at all 

Article 32 hearings and at applicable motions hearings as well”).

457 Transcript of JPP Public Meeting 386-87 (Nov. 14, 2014) (testimony of LCDR Philip J. Hamon, U.S. Navy, Senior Trial 

Counsel) (adding that in his experience, trial counsel will consult with VLCs before proposing trial schedule to military 

judge, making sure that VLC is available on all proposed trial dates).

458 E.g., Transcript of JPP Public Meeting 387–88 (Oct. 10, 2014) (testimony of MAJ Rebecca DiMuro, U.S. Army, Special 

Victim Prosecutor) (noting that system relies on trial counsel’s role to determine—for example, during discovery—“who 

needs what when” and assuring Panel that she takes that responsibility “very seriously”).

459 FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013). Article 6b does not include the CVRA’s requirement that 

before excluding a victim under the exception, judges: should make every effort to permit the fullest attendance possible 

and to consider reasonable alternatives to excluding the victim; and should clearly state on the record the reasons for any 

decision denying relief under the CVRA by clear and convincing evidence. RSP Report, supra note 3, at 142–43.
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A victim has a right to be heard at (1) a public hearing concerning the continuation of the accused’s 

pretrial confinement, (2) the sentencing phase of the accused’s court-martial, and (3) a public 

proceeding of the clemency and parole board of the accused’s Service relating to the offense or offenses 

of which he or she was convicted.460 In addition, M.R.E. 412 and M.R.E. 513 both expressly state 

that the victim or patient has a right to a reasonable opportunity to attend and be heard in evidentiary 

hearings conducted under those rules.461

2. Current Judicial Procedures on SVC/VLC Court Appearances 

The rules of practice and procedure for the participation of SVCs in courts-martial proceedings vary 

among and within the Services. In the Army’s Rules of Practice Before Army Courts-Martial, updated 

on November 1, 2014, Rule 2.3.1 provides that the Rules of Court apply to all military or civilian 

counsel representing victims, “including but not limited to the rules on motions practice.”462

The Uniform Rules of Practice Before Air Force Courts-Martial address victims’ rights and services, 

but the rules do not specifically address procedures for SVCs’ participation.463 Rule 4.6 of the Air 

Force’s Special Victims’ Counsel Rules of Practice and Procedure, which govern the role of SVCs in the 

Air Force, states:

Standing under the UCMJ. Victims, whether represented by SVC or civilian counsel, 

are not parties to a court-martial under RCM 103 and do not have the same 

entitlements as litigation parties under the UCMJ. MREs 412, 513, and 514 afford 

victims a reasonable opportunity to attend these evidentiary hearings and be heard. 

SVCs may represent victims in these and other UCMJ proceedings where victims 

are afforded standing, as permitted by the presiding military judge, and may obtain 

copies of motions and other relevant information necessary in order for the victim’s 

opportunity to be heard to be meaningful.464

Individual Navy-Marine Corps judicial circuits establish rules of practice for courts-martial. The 

Navy-Marine Corps Europe/Africa/Southwest Asia Circuit established rules pertaining to counsel 

representing victims.465 That circuit provides that counsel representing victims may be heard before the 

court “to a limited extent as allowed by law” and that counsel “should be seated behind the bar except 

when addressing the court.”466 That circuit’s rules also allow counsel to file motions and other papers 

with the court as deemed proper in their client’s interests, and requires copies of all filings to be served 

on all counsel participating in the case.467 In proceedings on M.R.E. 513 or 514 (victim advocate–

460 See FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013). The Response Systems Panel recommended extension 

of victims’ right to be heard to pretrial agreements. RSP Report, supra note 3, at 134–35.

461 L.R.M. v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013) (citing M.R.E. 412(c)(2) and M.R.E. 513(e)(2)).

462 U.S. Army Trial Judiciary, Rules of Practice Before Army Courts-Martial 4 (Nov. 1, 2013), available at http://jpp.whs.

mil/Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20150116/37_ArmyJudiciary_RulesofCourt_20131101.pdf.

463 See U.S. Air Force, Instr. 51-201, Administration of Military Justice §§ 7C, 7D (Sept. 25, 2014), available at 

http://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf.

464 U.S. Air Force, Special Victims’ Counsel Rules of Practice and Procedure 14–15 (Rule 33) (July 1, 2013), available at

http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q19c_USAF.pdf.

465 Navy-Marine Corps EURAFSWA Circuit Rules, supra note 443.

466 Id. at 23 (Rules 33.1 and 33.3).

467 Id. at 23–24 (Rule 33.4).
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IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGHOUT THE JUDICIAL PROCESS

victim privilege) motions, that circuit allows victims’ counsel, just as other counsel to the case may do, 

to move to close court proceedings.468

3. Clarification of Victims’ Right to Be Heard

In its July 2013 decision in L.R.M. v. Kastenberg, the Court of Appeals for the Armed Forces 

considered the requirement that the victim must be afforded a reasonable opportunity to attend and be 

heard at evidentiary hearings under M.R.E. 412 and M.R.E. 513. Kastenberg found that a victim who 

is represented by counsel may be heard through his or her counsel, not merely as a witness, and that 

his or her counsel may present facts as well as legal argument. Kastenberg cautions, however, that this 

right is “not absolute” but rather is subject to “reasonable limitations.” For example, CAAF noted, 

military judges have discretion under R.C.M. 801 to restrict victims or their counsel to being heard 

only through written submissions.469 Recently, the Joint Service Committee proposed that M.R.E. 412 

and M.R.E. 513 be amended to clarify, consistent with L.R.M. v. Kastenberg, that victims’ right to be 

heard at hearings conducted under those rules “include[s] the right to be heard through counsel.”470

Section 534(c) of the FY15 NDAA recently codified this principle.471

Kastenberg partly clarified the right of victims’ counsel to be reasonably heard at hearings conducted 

under M.R.E. 412 and M.R.E. 513, but there remains widespread confusion about procedures for 

representing victims in judicial proceedings and for enforcing other victim rights. One witness observed 

that with the advent of victims’ representation in the military, SVCs “are now part of the legal 

landscape and . . . need to be accounted for in the rule[s].”472 Civilian advocates, military experts, and 

military practitioners appearing before the JPP agreed that additional guidance and clarification about 

the right of victims to be heard directly and through their counsel is necessary.473

468 Id. at 24 (Rule 33.6).

469 L.R.M. v. Kastenberg, 72 M.J. 364, 370–71 (C.A.A.F. 2013).

470 U.S. Dep’t of Def., Joint Service Committee on Military Justice, Proposed Amendments to the Manual for CourtsMartial, United States, 79 Fed. Reg. 59,938, 59,941 (proposed Oct. 3, 2014), available at http://www.gpo.gov/fdsys/

pkg/FR-2014-10-03/pdf/2014-23546.pdf; Transcript of JPP Public Meeting 70, 99–100 (Oct. 10, 2014) (testimony of Col 

John G. Baker, U.S. Marine Corps, Deputy Director, Judge Advocate Division); id. at 101–02 (testimony of Mr. William 

Barto, Highly Qualified Expert and Attorney-Advisor to the U.S. Army); see also Letter from Mr. Paul S. Koffsky, Deputy 

General Counsel for Personnel and Health Policy, U.S. Department of Defense, to the Honorable Elizabeth Holtzman, 

Chair, Judicial Proceedings Panel, para. 2 (Oct. 16, 2014) (advising Panel that “[i]t is already the law in the military justice 

system” that victims have right to be heard through counsel at M.R.E. 412 and M.R.E. 513 hearings) (citing L.R.M. v. 

Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013)); Transcript of JPP Public Meeting 253–54 (Dec. 12, 2014) (testimony 

of LTG Flora D. Darpino, The Judge Advocate General, U.S. Army) (testifying that Joint Service Committee “will also 

recommend that the President issue a Rule of Court Martial and Rule of Evidence to ensure that victims have timely 

notice of important events as the case develops”). But see id. at 10–11 (testimony of Col Don Christensen, U.S. Air Force 

(Retired), President, Protect Our Defenders) (asserting that Joint Service Committee “still has not proposed rules governing 

the SVC’s role in the court-martial process,” leaving it to appellate courts, trial judges, and staff judge advocates “to 

ad hoc define the role of an SVC”); id. at 12 (calling for amended Rules for Courts-Martial “to empower SVCs to fully 

represent their clients”).

471 FY15 NDAA, Pub. L. No. 113-291, § 534(c), 128 Stat. 3292 (2014) (requiring within 180 days that MCM “shall be 

modified to provide that when a victim of an alleged sex-related offense has a right to be heard in connection with the 

prosecution of the alleged sex-related such offense, the victim may exercise that right through counsel”).

472 Transcript of JPP Public Meeting 101–02 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

473 Transcript of JPP Public Meeting 99–100 (Oct. 10, 2014) (testimony of Col John G. Baker, U.S. Marine Corps, Deputy 

Director, Judge Advocate Division); id. at 101–02 (testimony of Mr. William Barto, Highly Qualified Expert and AttorneyAdvisor to the U.S. Army); see also Transcript of JPP Public Meeting 89 (Nov. 14, 2014) (testimony of Col Carol K. Joyce, 

U.S. Marine Corps, Officer in Charge, Victims’ Legal Counsel Organization) (emphasizing continued “need for procedural 
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Victims’ counsel universally stressed a lack of uniformity among different courts and judges regarding 

their standing and the procedures for participating in judicial proceedings. SVCs told the JPP that their 

ability to be heard in court proceedings depends both on the issue involved and on the military judge 

or investigating officer who is presiding.474

In light of this, several presenters and victims’ counsel recommended rule changes to more fully define 

their standing and the procedures for their being heard on behalf of a client.475 In particular, one SVC 

Program Manager recommended that the Rules for Courts-Martial be amended to require prompt 

service of all pleadings on a victim or victim’s counsel, ensure SVC presence during pretrial conferences 

with the military judge at which the parties raise an issue affecting the victim’s rights, and provide 

the victim or victim’s counsel the right to present witness testimony and evidence during M.R.E. 412 

hearings.476 In addition, the President of Protect our Defenders, a civilian victim advocacy organization, 

proposed amending the Rules for Courts-Martial to provide victims with specific rights to discovery of 

all filings by either party to a case, statements of the accused related to an offense involving the victim, 

and any investigative material in the government’s possession—regardless of the stage of investigation 

or criminal proceeding involved—as well as any recommendations the staff judge advocate makes to 

the convening authority.477

guidance as to the role of these SVC, VLCs in the courtroom” and testifying that victims’ counsel’s right to question 

witnesses at hearings at which they are moving or responding party is not being enforced); id. at 179, 221–22 (testimony 

of Maj Marc R. Tilney, U.S. Marine Corps, Victims’ Legal Counsel).

474 Transcript of JPP Public Meeting 179, 221–22 (Nov. 14, 2014) (testimony of Maj Marc R. Tilney, U.S. Marine Corps, 

Victims’ Legal Counsel) (highlighting lack of predictability as “a huge concern” for VLCs in advising clients and assessing 

cases, especially considering that more junior counsel are continuing to enter the VLC program); id. at 344 (testimony of 

CPT Sarah Robbins, U.S. Army, Trial Defense Counsel) (testifying that “[i]t is still clearly a two party system”); Written 

Statement of CPT Jesse S. Sommer, U.S. Army, Special Victims’ Counsel, to JPP 9 (Nov. 14, 2014) (explaining that he does 

“not always know how, when or if” he would be allowed to object during proceedings); Transcript of JPP Public Meeting

213–16 (Nov. 14, 2014) (testimony of CPT Sommer) (reporting that contrary to an existing Army court rule, he is not 

always included in docketing decisions, and that one military judge denied his delay request to take account of his required 

attendance at proceedings in another case) (citing Rules of Practice Before Courts-Martial 2.3.1); see also Transcript of 

JPP Public Meeting 10–12 (Dec. 12, 2014) (testimony of Col Don Christensen, U.S. Air Force (Retired), President, Protect 

Our Defenders) (describing implementation of Services’ SVC/VLC programs as “haphazard” and SVCs’/VLCs’ role as 

“ill-defined,” and testifying that “SVCs face a continual struggle to be heard in court”); Transcript of JPP Public Meeting

318–21 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP); id. at 317–18 (testimony of Ms. 

Miranda Petersen, Program & Policy Director, Protect Our Defenders).

475 Transcript of JPP Public Meeting 152–53 (Dec. 12, 2014) (testimony of Maj William D. Ivins, III, U.S. Marine Corps, 

Regional Victims’ Legal Counsel) (calling for “procedural rules that clearly define [VLCs’] role in the investigative phase, 

the initial disposition phase, the preliminary hearing phase, and the judicial process phase”); id. at 172 (testimony of 

CPT Brian Stransky, U.S. Army, Special Victims’ Counsel) (testifying that “procedural changes are necessary, specifically 

probably to the [Rules for Courts-Martial] to give, if not equal standing to SVCs, at least . . . [recognizing that] the SVC 

is entitled to be present at all hearings and that their schedules ought to be accommodated as much as the other counsel”); 

Transcript of JPP Public Meeting 235–36 (Nov. 14, 2014) (testimony of CDR Colleen Shook, U.S. Navy, Senior Victims’ 

Legal Counsel) (advising the JPP to recommend “official recognition” of VLCs’ right to advocate on victims’ behalf); see 

also Transcript of JPP Public Meeting 304–05 (Dec. 12, 2014) (testimony of VADM Nanette M. DeRenzi, Judge Advocate 

General, U.S. Navy) (agreeing that the Navy should consider “areas where we need to clarify and standardize where we 

can” in this area); see also RSP Report, supra note 3, at 135 (predicting that litigation about victims’ right to be heard 

“will likely continue unless DoD issues formal clarification” and recommending that that right be clarified as “includ[ing] 

the right to be heard on legal issues through counsel”).

476 Written Submission of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, Special Victims’ Counsel Division, to JPP

(provided after public meeting held Nov. 14, 2014).

477 Written Submission of Protect Our Defenders to JPP (provided after public meeting held Dec. 12, 2014) (recommending, 

in addition, granting victims the same standing as parties to the case in arguing motions before the court, and the ability 

to appeal decisions affecting the victim’s rights made by a military judge or Article 32 preliminary hearing officer to the 

Service Court of Criminal Appeals); see also Transcript of JPP Public Meeting 324 (Oct. 10, 2014) (testimony of Mr. 

Ryan Guilds, Counsel, Arnold & Porter LLP) (agreeing with need for rule providing victims’ counsel with full access to 
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IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGHOUT THE JUDICIAL PROCESS

Senior Service military attorneys told the JPP that policy development is under way to provide practice 

guidance for SVCs. At the JPP’s December public meeting, the Air Force Judge Advocate General 

noted current efforts in the Air Force to “give SVCs greater access and availability to . . . scheduling 

hearings,” and he told the JPP that his Service is currently developing a rule that will authorize SVCs 

to address the court from the podium used by trial and defense counsel.478 The Army Judge Advocate 

General said that her Service is working on SVC rule changes, and the Marine Corps’ representative 

indicated that his Service’s Uniform Rules of Court are currently being studied with an eye to 

proposing changes in order to more clearly define the roles and responsibilities of VLCs.479

D. VICTIMS’ MECHANISMS FOR ENFORCING RIGHTS

Section 1701 of the FY14 NDAA did not specify the legal standing of victims or appellate review to 

enforce the rights set forth in Article 6b. Therefore, victims and their counsel in the military justice 

system proceed as would a military accused: they file a request for discretionary review under the All 

Writs Act,480 as occurred in Kastenberg481 and subsequent cases.482

A filing under the All Writs Act is submitted by petition to an appellate court to seek extraordinary 

relief through a writ of mandamus. A writ of mandamus is normally discretionary, and the court 

is not required to accept the petition, entertain a request for a stay of the proceedings, or review 

the case. Military appellate courts have entertained petitions filed by SVCs, and the Army Court of 

Criminal Appeals recently wrote that “we acknowledge that the victim and her special victim counsel 

are not ‘strangers’ to this court-martial and, while not a party, do enjoy ‘limited participant standing’ 

as outlined in Kastenberg.”483 However, while courts have agreed to consider petitions, no statutory 

requirement mandates their review of petitions from victims.

In Section 535 of the FY15 NDAA, Congress added, at the end of Article 6b, a right for victims to 

petition the Service Courts of Criminal Appeals for a writ of mandamus if they believe “a courtmartial ruling violates the victim’s rights afforded by” M.R.E. 412 or M.R.E. 513.484 The FY15 NDAA 

pleadings, bench conferences, and proceedings as well as right to file any desired pleading).

478 Transcript of JPP Public Meeting 309–10, 271 (Dec. 12, 2014) (testimony of Lt Gen Christopher F. Burne, The Judge 

Advocate General, U.S. Air Force).

479 Transcript of JPP Public Meeting 302 (Dec. 12, 2014) (testimony of LTG Flora D. Darpino, The Judge Advocate General, 

U.S. Army); id. at 291 (testimony of Col John G. Baker, U.S. Marine Corps, Deputy Director, Judge Advocate Division).

480 28 U.S.C. §§ 1651-1659 (2012).

481 While Kastenberg recognizes victims’ right to be heard in M.R.E. 412 and 513 hearings, the Court cautioned in that case 

that those two rules do not create a right to appeal an adverse ruling issued after such hearings. L.R.M. v. Kastenberg, 

72 M.J. 364, 370–71 (C.A.A.F. 2013). Explaining why it was even considering the issue raised by the victim’s counsel, 

the Kastenberg Court noted that there was “no other meaningful way for these issues to reach appellate review.” Thus, if 

the Court did not act to clarify victims’ right to be heard in that case, “every military judge could interpret the scope and 

extent of a victim’s rights differently, so that a victim . . . rights vary from courtroom to courtroom.” Id. at 372.

482 See SPC “H.C.” v. Bridges, Misc. No. 20140793 (A. Ct. Crim. App. Dec. 1, 2014) (unpublished order denying writ to 

compel granting of trial continuance allowing SVC to attend and participate); SPC “Y.G.” v. Bridges, Misc. No. 20140905 

(A. Ct. Crim. App. Dec. 1, 2014) (same); “S.C.” v. Schubert, Misc. No. 20140813 (A. Ct. Crim. App. Oct. 31, 2014) 

(denying challenge to victim’s deposition); SSG “C.C.” v. Lippert, Misc. No. 20140779 (A. Ct. Crim. App. Oct. 16, 

2014) (unpublished order ordering military judge to comply with M.R.E. 513(c)(2) prior to deciding whether to order 

production of victim’s mental health records for in camera review).

483 SPC “H.C.” v. Bridges, Misc. No. 20140793 (A. Ct. Crim. App. Dec. 1, 2014) (unpublished order).

484 FY15 NDAA, Pub. L. No. 113-291, § 535, 128 Stat. 3292 (2014).
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modification does not apply to all victims’ rights in Article 6b and it does not clarify whether appellate 

review is discretionary or mandatory. In contrast, additional language in the CVRA specifies that 

the appellate court is required to “take up and decide the application,” an instruction that has been 

interpreted to be nondiscretionary.485

In civilian federal courts, the CVRA also expressly provides for an expedited review of any trial court 

decision affecting a victim’s right. The CVRA does not expressly state whether it applies to victims 

of offenses prosecuted under the UCMJ. The CVRA allows a victim to petition the court of appeals 

for a writ of mandamus as well as appellate court review within 72 hours of the petition’s filing.486

According to a civilian victims’ rights expert who appeared before the JPP, victims’ appellate standing 

is better established in civilian jurisdictions than in the military justice system. She testified that it is 

“a little stifling” for victim’s counsel at courts-martial to not “know what your path is so that you can 

counsel effectively” after a military judge enters a ruling unfavorable to a victim’s privacy interests. 

While noting that several states have put in place ombudsmen to enforce victims’ rights in court, the 

expert recommended against that option. In her opinion, “enforcement through appellate device is a 

better route to go.”487

Two civilian victim advocates who testified in October before the JPP strongly urged that the right 

of victims to file an interlocutory appeal be established, offering various reasons in support of their 

position. First, emphasizing that civilian victims enjoy this right under the CVRA, the victim advocates 

argued that there is no legitimate military objective served by denying military victims the same right.488

Second, they asserted that case law currently is based solely on defense appeals from military judges’ 

rulings favorable to victims.489 Third, the civilian advocates argued that because victims currently lack 

“an ability to timely appeal the disclosure of their records,” they are in “the untenable position of 

either accepting that their private thoughts and records will be disclosed or refusing to proceed with 

criminal charges.”490

485 In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555 (2d Cir. 2005); Kenna v. U.S. Dist. Court, 435 F.3d 1011 (9th Cir. 2006).

486 18 U.S.C. § 3771(d)(3) (2012); see also RSP Report, supra note 3, at 135 (recommending that DoD “clarify that victims 

have legal standing to enforce their rights listed in Article 6b of the UCMJ at any relevant time in the proceedings, 

including before, during and after trial”).

487 Transcript of JPP Public Meeting 53–55 (Nov. 14, 2014) (testimony of Ms. Meg Garvin, Executive Director, National 

Crime Victim Law Institute) (citing Oregon, California, Arizona, and Maryland as jurisdictions with “explicit appellate 

moments”).

488 Written Statement of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP, and Ms. Miranda Petersen, Program & Policy 

Director, Protect Our Defenders, to JPP 3–4 of M.R.E. 412 Analysis (Oct. 24, 2014) (citing 18 U.S.C. § 3771(d) and 

asserting that victims also “should also be given the right to automatic appeal to the CAAF for review of the service 

courts of appeals decisions”); Written Statement of Ms. Petersen to JPP para. 12 (Oct. 10, 2014); Transcript of JPP Public 

Meeting 267–68 (Oct. 10, 2014) (testimony of Ms. Petersen); see also id. at 290 (testimony of Mr. Guilds) (opining that 

discretionary mandamus relief currently available in theory was insufficient, as his previous unsuccessful writs seeking 

interlocutory review in military appellate courts demonstrated in practice).

489 Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, to JPP para. 12 (Oct. 

10, 2014); Transcript of JPP Public Meeting 291 (Oct. 10, 2014) (testimony of Ms. Petersen); id. at 292 (testimony of 

Mr. Ryan Guilds, Counsel, Arnold & Porter LLP) (“[A]s a result, you have a skewed analysis. You have courts saying the 

defendant’s rights weren’t violated because they didn’t turn it over or they weren’t allowed to use it at trial. But you don’t 

have any real meaningful discussion.”).

490 Written Statement of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP, to JPP para. 12 (Oct. 10, 2014); accord Transcript 

of JPP Public Meeting 276 (Oct. 10, 2014) (testimony of Mr. Guilds).
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IV. RIGHTS AND NEEDS OF SEXUAL ASSAULT VICTIMS THROUGHOUT THE JUDICIAL PROCESS

E. JPP ANALYSIS AND RECOMMENDATIONS ON VICTIMS’ RIGHTS AND 

NEEDS

Delays in developing guidance to implement Article 6b of the UCMJ, much like the delays that have 

impeded effective application of the amended Article 120, pose a significant obstacle to the full 

exercise of victims’ right to be heard, their right to notice, and their access to case information and 

documents. Section 1701 of the FY14 NDAA required that necessary MCM revisions be recommended 

and regulations prescribed by December 26, 2014. Yet guidance remains pending, and many current 

practitioners told the JPP that inconsistent practices and procedures impede SVCs’ efforts to adequately 

represent their clients and assert their clients’ rights in court.

In particular, inconsistent access to case information and documents continues to hinder effective 

representation of victim clients. Although SVCs generally receive pleadings regarding issues raised 

under M.R.E. 412 and M.R.E. 513, these pleadings alone may not provide victims and their counsel 

sufficient information to understand the full context of the case. Civilian experts told the JPP that to 

effectively represent any client, they must be able to track a case throughout the proceedings, and SVCs 

testified that equal access is especially crucial when advising victims in the military judicial system.

The military Services have begun to address this need for access to information, but recent guidance 

from leadership of the Services’ Judge Advocate General’s Corps either focuses too narrowly on 

specific documents and evidentiary issues or improperly relies on the Privacy Act and Freedom of 

Information Act (FOIA). SVCs should not have to file FOIA requests to retrieve relevant information 

about proceedings in which their clients have a concrete, particularized interest. The JPP recommends 

that DoD direct the Services to ensure that SVCs and victims have appropriate access to docketing 

information and case filings. In part, this could be accomplished by adopting an electronic system akin 

to the civilian PACER (Public Access to Court Electronic Records) service.

Inconsistent policies and practices regarding SVC participation in court proceedings limit the ability 

of victims to be heard. The JPP recommends that all practices and procedures concerning SVCs’ 

participation in court—those that currently exist as well as those yet to be formulated—be made 

uniform for all military judicial proceedings.

The right of victims to be heard is at particular risk when they are no longer in contact with their SVC, 

or in cases in which they have declined representation in the first place. The RSP recommended that 

the opportunity for SVC representation be extended to a victim “so long as a right of the victim exists 

and is at issue.”491 DoD responded to the recommendation by referring the issue to the Military Justice 

Review Group.492 The JPP recommends that the DoD propose timely revisions to statutes, the MCM, 

and/or regulations to extend eligibility for SVC representation so long as a right of the victim exists 

and is at issue. 

Finally, as noted above, the FY14 NDAA did not specify any mechanism to enforce the rights 

guaranteed by Article 6b, and the FY15 NDAA merely recognizes victims’ right to seek discretionary 

review (i.e., a writ of mandamus) in the appellate courts for issues pertaining to M.R.E.s 412 and 513. 

In federal civil and criminal cases, the CVRA establishes mandatory and expedited interlocutory review 

of any trial court decision pertaining to a victim’s right. The JPP recommends that the Secretary of 

491 RSP Report, supra note 3, at 25 (Recommendation 44).

492 DoD RSP Implementation Memo, supra note 3, at 14–15.
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Defense consider establishing expedited procedures for victims to seek mandatory interlocutory review 

in the Service Courts of Criminal Appeals of any alleged violation of victims’ rights.493

493 Noting that the CVRA established mandatory and expedited, interlocutory review of any civilian federal trial court 

decision on a victim’s right, the RSP recommended that the Secretary of Defense “clarify that victims have legal standing 

to enforce their [Article 6b] rights . . . at any relevant time in the proceedings, including before, during, and after trial. RSP

Report, supra note 3, at 28 (Recommendation 53 and third accompanying finding). DoD referred this recommendation to 

the Joint Service Committee. DoD RSP Implementation Memo, supra note 3, at 15.
97

Victim Privacy Issues in Military Sexual V. Assault Cases – Privileges and Protections

A. COMPETING INTERESTS AND DISTINCT CHALLENGES

Sexual assault prosecutions often involve conflicts between the right of an accused person to present 

a defense and the desire to protect the privacy interests of the alleged victim. In military judicial 

proceedings, evidentiary issues regarding the victim’s sexual history or mental health often are the 

cause of such conflicts. These issues arise frequently in military cases because information about 

victims may be less private or more accessible than it is outside of the military.

Characteristics that are unique to the military environment create dynamics in military judicial 

proceedings that are different from civilian sexual assault prosecutions.494 The work environment 

and social sphere for military personnel are often more interconnected than they are for their civilian 

counterparts. Military regulations and common practice commonly require unmarried Service members 

of junior ranks to reside on base, where they live close to one another and experience little separation 

between their professional and private lives. Military members generally receive all medical treatment, 

including mental health counseling, from their local military treatment facility. Commanders and 

supervisors must ensure that Service members are fit to perform their duties, so they may need access 

to information about a military member’s medical and mental health treatment.

The merging of the social and professional lives of military personnel increases the likelihood, or at 

least the perception, that victims of sexual assault in the military will be unable to safeguard their 

privacy if they report their victimization.495 A 2003 study at the U.S. Air Force Academy illustrates the 

challenges inherent to military service and their impact on the reporting of sexual assault.496 The top 

two reasons cited for failing to report were fear of embarrassment and fear of ostracism by peers.497 A 

more recent DoD survey indicated that 70% of women who did not report stated they did not make 

a report because they did not want anyone to know about the incident, and 51% said they did not 

believe their report would be kept confidential.498 The unique facts of military life, combined with 

aggressive investigation and case development—which is common in sexual assault cases—increases 

the potential for unnecessarily invading a victim’s privacy.499

In military judicial proceedings, issues involving private information about a victim often arise in 

disputes under M.R.E. 412 (Sex offense cases: relevance of alleged victim’s sexual behavior or sexual 

predisposition) and M.R.E. 513 (Psychotherapist-patient privilege). M.R.E. 412 and M.R.E. 513 

494 See generally Major Paul M. Schimpf, Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to 

Communications Between a Victim and Victim-Advocate in the Military, 185 Mil. L. Rev. 149, 179–80 (2005).

495 Id.

496 See Report of Panel to Review Sexual Misconduct Allegations at the U.S. Air Force Academy 52 (2003), available at

http://www.defense.gov/news/Sep2003/d20030922usafareport.pdf.

497 Id.

498 Defense Manpower Data Center, 2012 Workplace and Gender Relations Survey of Active Duty Members: Briefing on

Sexual Assault and Sexual Harassment 106 (Mar. 2013), available at http://www.sapr.mil/public/docs/research/2012_

Workplace_and_Gender_Relations_Survey_of_Active_Duty_Members-Survey_Note_and_Briefing.pdf.

499 See Schimpf, supra note 494, at 180.
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are both rules of exclusion that generally prevent the introduction of evidence to protect the victim’s 

privacy.500 However, the rules include exceptions that allow an accused to present his or her defense 

in certain circumstances,501 leading to concerns about balancing the rights of the accused against the 

privacy interests of the victim. The rules, recent changes, and current issues are detailed below.

B. MILITARY RULE OF EVIDENCE 412 (SEX OFFENSE CASES: RELEVANCE OF 

ALLEGED VICTIM’S SEXUAL BEHAVIOR OR SEXUAL PREDISPOSITION)

1. The Military’s Rape Shield Rule

Before 1978, evidentiary rules allowed an individual prosecuted for a sexual assault crime in the 

federal court system to present evidence of a victim’s sexual history in his defense.502 This line 

of defense often transformed trials into “inquisitions into the victim’s morality, not trials of the 

defendant’s innocence or guilt.”503 The Privacy Protection for Rape Victims Act of 1978 amended the 

Federal Rules of Evidence to include Rule 412. M.R.E. 412 “is substantially similar in substantive 

scope to Federal Rule of Evidence 412” and exists for the same reasons.504 But M.R.E. 412 also has 

some notable differences, because of the unique nature of the military environment and practice.505 In 

particular, M.R.E. 412 does not refer to civil proceedings, “as these are irrelevant to courts-martial 

practice”; tailors the procedures to “military practice”; and replaces the federal rule’s in camera review 

with a closed hearing in which the victim “is afforded a reasonable opportunity to attend and be 

heard.”506 The purpose of M.R.E. 412 is provided in the rule’s analysis:

Rule 412 is intended to shield victims of sexual assaults from the often embarrassing 

and degrading cross-examination and evidence presentations common to prosecutions 

of such offenses. In so doing, it recognizes that the prior rule, which it replaces, often 

yields evidence of at best minimal probative value with great potential for distraction 

and incidentally discourages both the reporting and prosecution of many sexual 

assaults.507

M.R.E. 412 is a rule of relevance, not a rule of privilege.508 M.R.E. 412 excludes two broad 

categories of evidence as irrelevant: (1) evidence offered to prove that an alleged victim engaged in 

sexual behavior other than that charged and (2) evidence offered to prove an alleged victim’s sexual 

predisposition (that is, information about dress, speech, or lifestyle).509 However, M.R.E. 412(b) 

500 M.R.E. 412(a); M.R.E. 513(a).

501 M.R.E. 412(b)(1)(A-C); M.R.E. 513(d)(1–8).

502 Major Shane R. Reeves, U.S. Army, Time to Fine-Tune Military Rule of Evidence 412, 196 Mil L. Rev. 47, 54 (2008).

503 124 Cong. Rec. 34,912–13 (1978) (statement of Rep. Elizabeth Holtzman).

504 2012 MCM, app. 22 at 36.

505 Id. (stating that application of Rule has been somewhat broadened and procedural aspects of Federal Rule have been 

modified to adapt them to military practice).

506 Id. at 37.

507 Id. at 36.

508 Transcript of JPP Public Meeting 76–77 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

509 Id. (referring to M.R.E. 412(a)(1) and (2)).
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

includes three exceptions that may be used to find that otherwise excluded evidence is relevant and 

admissible.510

First, M.R.E. 412 allows the admission of specific instances of sexual behavior by a victim intended 

to demonstrate that a person other than the accused was the source of semen, injury, or other physical 

evidence.511 This exception has been encountered less frequently since the advent of sophisticated 

forensic and DNA analysis.512

Second, M.R.E. 412 allows the admission of specific instances of sexual encounters between the alleged 

victim and the accused to prove consent in the case at hand.513 Critics of this exception often observe 

that consent at some past point does not prove subsequent consent. Some states and commonwealths 

have limited its application by requiring that admissible sexual activity with the accused must be within 

a certain period of time in relation to the charged offense.514 Nonetheless, the exception remains part of 

federal and military jurisprudence. 

Third, M.R.E. 412 allows admission of evidence when exclusion would violate the accused’s 

constitutional rights.515 This exception recognizes “the fundamental right of the defense under the 

Fifth Amendment . . . to present relevant defense evidence.”516 In practice, this exception has been 

used to offer evidence that the alleged victim has previously made a demonstrably false sexual assault 

allegation or evidence of sexual behavior or predisposition that is so distinctive and so similar to the 

reported sexual offense that it provides context for or explains the allegations at issue. Of the three, 

the “constitutionally required” exception has generated the greatest amount of litigation in the military 

justice system.517 The federal courts, eleven states, and the District of Columbia have a similar written 

exception, while thirty-nine states do not.518

510 The exceptions contained in M.R.E. 412(b) mirror those included in F.R.E. 412. The original version of F.R.E. 412 

presented in the Subcommittee on Criminal Justice of the House Committee on the Judiciary allowed for the introduction 

of evidence of a victim’s sexual history only if: (1) there was a past sexual relationship with the accused and consent was 

at issue; or (2) the accused presented evidence that another individual caused the physical harm to the victim. Recognizing 

the constitutional concerns raised by opponents of the original bill and that these two exceptions were inadequate 

protections for defendants, the Subcommittee on Criminal Justice added an exception for the introduction of evidence that 

was “constitutionally required.” Major Shane R. Reeves, U.S. Army, Time to Fine-Tune Military Rule of Evidence 412, 

196 Mil. L. Rev. 47, 58 (2008); accord Michelle J. Anderson, From Chastity Requirement to Sexuality and License: Sexual 

Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51, 92 (2002).

511 M.R.E. 412(b)(1)(A).

512 Transcript of JPP Public Meeting 77 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

513 M.R.E. 412(b)(1)(B).

514 Transcript of JPP Public Meeting 77–78 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

515 M.R.E. 412(b)(1)(C).

516 2012 MCM, app. 22 at 36.

517 Transcript of JPP Public Meeting 78–79 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

518 Anderson, supra note 510, at 83-84.
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2. Use of M.R.E. 412 Evidence at Article 32 Hearings

Before any criminal charges are referred for trial by a general court-martial, the UCMJ requires 

a preliminary inquiry or hearing to be conducted to consider the charges and appropriate case 

disposition.519 The nature of and procedures for Article 32 hearings have been the subject of significant 

public scrutiny, particularly in cases that involve sexual assault offenses.520 Some presenters contended 

that Article 32 hearings in military sexual assault cases had devolved into “their own trials” regarding 

a victim’s sexual behavior and history, and that “[i]f this is what Article 32 has come to be, then it is 

time to either get rid of it or put real restrictions on the conduct during them.”521 As a result, Congress 

enacted substantial changes to Article 32 pretrial hearings in the FY14 NDAA.522

Previously, an Article 32 pretrial investigation required an “inquiry as to the truth of the matter set 

forth in the charges, consideration of the form of the charges, and a recommendation as to disposition 

which should be made of the case in the interest of justice and discipline.”523 In Section 1702 of the 

FY14 NDAA, Congress revised the purpose of Article 32 hearings and the procedures used to conduct 

them. Article 32 was modified to require a “preliminary hearing,” limited to determining “whether 

there is probable cause to believe an offense has been committed and the accused committed the 

offense,” whether the convening authority has jurisdiction over the offense and the accused, and the 

form of the charges, and then providing a recommendation as to “the disposition that should be made 

of the case.”524

Rule for Courts-Martial (R.C.M.) 405 governs pretrial hearings conducted under Article 32.525 Prior 

to June 13, 2014, R.C.M. 405(i) provided that the military rules of evidence do not apply to Article 32 

pretrial investigations, except the following exclusionary rules and privileges in M.R.E.s 301, 302, 303, 

305, 412 and Section V, including M.R.E. 513.526 Although the rule stated that M.R.E.s 412 and 513 

applied at Article 32 hearings, the procedures were not set out in clear detail for investigating officers 

who were responsible for conducting the hearings, and until recently were not required to be judge 

advocates.527

519 10 U.S.C. § 832 (UCMJ art. 32, 2012); R.C.M. 405(a).

520 See, e.g., Jennifer Steinhauer, Navy Hearing in Rape Case Raises Alarm, N.Y. Times, Sept. 21, 2013, at A1.

521 Id. (citing comment of Professor Jonathan Lurie, Rutgers University School of Law).

522 See Transcript of JPP Public Meeting 60–66 (Aug. 7, 2014) (testimony of Mr. Dwight Sullivan and presentation, 

“Overview of Military Justice System and Legislation Update”).

523 10 U.S.C. § 832 (UCMJ art. 32, 2012). 

524 FY14 NDAA, Pub. L. No. 113-66, § 1702, 127 Stat. 672 (2013). Section 1702 required that changes to Article 32 take 

effect in one year and apply to any offenses committed on or after that date. Section 531 of the FY15 NDAA clarified that 

the new rules and procedures would apply for all Article 32 hearings conducted after December 26, 2014, irrespective of 

the date the offense was committed. FY15 NDAA, Pub. L. No. 113-291, § 531, 128 Stat. 3292 (2014).

525 2012 MCM pt. II, at 34.

526 2012 MCM pt. II, at R.C.M. 405(i) (2013). M.R.E. 301, 302, 303, and 305 address the privilege concerning compulsory 

self-incrimination, the privilege concerning mental examination of an accused, degrading questions, and rights warnings.

527 R.C.M. 405(i) and disc. The discussion portion of the rule notes that an “investigating officer should exercise reasonable 

control over the scope of inquiry” and “an investigating officer may consider any evidence, even if that evidence would not 

be admissible at trial.” Id. Cf. U.S. Dep’t of Def., Joint Service Committee on Military Justice, Proposed Amendments to

the Manual for Courts-Martial, United States, 79 Fed. Reg. 59,938, 59,941 (proposed Oct. 3, 2014), available at 

http://www.gpo.gov/fdsys/pkg/FR-2014-10-03/pdf/2014-23546.pdf.
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

On June 13, 2014, the President issued Executive Order (EO) 13669, modifying various sections of 

R.C.M. 405. The EO stated that M.R.E.s 301, 302, 303, 305, and Section V (Privileges, e.g., M.R.E. 

513) “shall apply in their entirety.” The EO also specified that M.R.E. 412 “shall apply in any case 

defined as a sexual offense in Mil. R. Evid. 412(d).”528

EO 13669 clarified the authority and procedures to be used by an Article 32 investigating officer in 

making evidentiary determinations. The revised rule provides that the investigating officer assumes 

the military judge’s powers to exclude evidence from Article 32 hearings and requires the investigating 

officer to follow the procedures set forth in the applicable rule.529 The EO further provides that any 

M.R.E. 412 evidence admitted at an Article 32 hearing, including closed hearing testimony, must be 

protected pursuant to the Privacy Act of 1974. The EO requires evidence that is deemed admissible 

by the hearing officer to be made a part of the report of investigation. Evidence that is deemed 

inadmissible is not to be included in the ROI, and the evidence must be safeguarded using procedures 

modeled after R.C.M. 1103A (Sealed exhibits and proceedings).530

At the JPP’s request, the military Services described the impact of EO 13669 on the litigation of M.R.E. 

412 issues at Article 32 proceedings. Before the President issued EO 13669, R.C.M. 405 clearly 

stated that M.R.E. 412 applied to Article 32 hearings. But practices among the Services differed as 

to application of the rule. The Air Force said EO 13669 put defense counsel “on clear notice that if 

they want to elicit evidence of sexual behavior or sexual predisposition, they must follow a distinct 

set of rules with oversight by a neutral, Judge Advocate, acting as Investigating Officer.” The Marine 

Corps said EO 13669 has had “little impact” on Article 32 hearings in the Marine Corps because 

investigating officers have “always” decided whether an exception has been satisfied only after the 

parties have litigated whether protected evidence should be disclosed. The Coast Guard said the “most 

significant change” introduced by EO 13669 in the Coast Guard is that the procedures followed at 

court-martial to determine the admissibility of M.R.E. 412 “now clearly apply” at Article 32 hearings, 

including closure of the hearing, in camera review, and the sealing of exhibits.531

Some presenters who appeared before the JPP harshly criticized the EO’s amendment to R.C.M. 

405(i), and several advised the JPP to recommend that it be rescinded.532 They argued that it was 

never appropriate for Article 32 investigating officers to consider M.R.E. 412 evidence at Article 32 

hearings, and that they should be explicitly forbidden from doing so.533 These critics contended that 

the Article 32 hearings’ shift in focus—to determining whether probable cause exists to support the 

528 Exec. Order No. 13,669, 79 Fed. Reg. 34,999, 35,002 (June 18, 2014).

529 Id. (stating “[i]n applying these rules to a pretrial investigation, the term ‘military judge,’ as used in these rules, shall mean 

the investigating officer, who shall assume the military judge’s powers to exclude evidence from the pretrial investigation, 

and who shall, in discharging this duty, follow the procedures set forth in the rules cited in paragraphs (1) and (2)”).

530 Id.

531 Id. Services’ Responses to JPP Request for Information 46 (Nov. 6, 2014). The Army and Navy did not provide 

information.

532 See, e.g., Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, to JPP paras. 

2–4 (Oct. 10, 2014); Transcript of JPP Public Meeting 261–64 (Oct. 10, 2014) (testimony of Ms. Petersen); Letter 

from Protect Our Defenders, para. 6 (Sept. 25, 2013), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/03-

Victim_Privacy/20141010/22_POD_Letter_MRE412_Obama_20130925.pdf; Press Release of Protect Our Defenders, 

paras. 4–6 (July 28, 2014), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/03-Victim_Privacy/20141010/23_

POD_SummaryConcerns_MRE412_ExecOrder_20140728.pdf; Transcript of JPP Public Meeting 361–63 (Oct. 10, 2014) 

(testimony of Lt Col Brian Thompson, U.S. Air Force, Chief Senior Trial Counsel); Transcript of JPP Public Meeting 377 

(Oct. 10, 2014) (testimony of Maj Pete Houtz, U.S. Marine Corps, Regional Trial Counsel).

533 Id.
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charges—made pretrial consideration of M.R.E. 412 even less appropriate.534 Moreover, emphasizing 

that M.R.E. 412 requires difficult evidentiary determinations, several presenters argued that 

investigating officers often lack the expertise needed to consider such evidence at Article 32 hearings.535

Responding to the criticisms of the EO 13669 amendment, Mr. Paul Koffsky of the DoD Office of 

the General Counsel advised the JPP that before the order was issued, testimony about victims’ prior 

sexual history was “frequently elicited at Article 32 hearings, even when such evidence would not be 

admissible at courts-martial.” The amendment, according to Mr. Koffsky, “was designed to ensure that 

procedures to protect victims and their privacy are followed at Article 32 investigations, not to allow 

the admission of any evidence that would have been inadmissible at an Article 32 investigation before 

the rule change.”536

On October 3, 2014, the Joint Service Committee recommended additional revisions to R.C.M. 405 

in a draft Executive Order (Draft EO) in order to better align its procedures with the FY14 NDAA 

changes to the Article 32 preliminary hearing.537 The Draft EO proposes that a new Discussion section 

be added to R.C.M. 405(a) to clarify that

The function of the preliminary hearing is to ascertain and impartially weigh the facts 

needed for the limited scope and purpose of the preliminary hearing. The preliminary 

hearing is not intended to perfect a case against the accused and is not intended to 

serve as a means of discovery or to provide a right of confrontation required at trial.538

The Draft EO suggests adding language to the Discussion section of R.C.M. 405(i)(1) to limit the 

preliminary hearing officer to considering evidence only within the limited purpose of that hearing.539

The changes also would provide the hearing officer with explicit authority to safeguard information by 

ordering exhibits, proceedings, or other matters sealed under R.C.M. 1103A.540

If the Draft EO is signed by the President, one of its most significant changes would be to eliminate the 

“constitutionally required” exception to M.R.E. 412 at Article 32 hearings.541 Military justice experts 

told the JPP that the Draft EO’s restriction would significantly reduce M.R.E. 412 issues at Article 

32 hearings, where M.R.E. 412 evidence, such as bias and motive to fabricate prior false allegations, 

534 See, e.g., Press Release of Protect Our Defenders, para. 8 (July 28, 2014) (arguing that victims’ prior sexual behavior 

“is irrelevant to the determination of whether there is probable cause” to support sexual assault charges); Transcript of 

JPP Public Meeting 333 (Oct. 10, 2014) (testimony of Ms. Miranda Petersen, Program & Policy Director, Protect Our 

Defenders); id. at 364–67 (Oct. 10, 2014) (testimony of CDR Jonathan Stephens, U.S. Navy, Senior Trial Counsel).

535 See, e.g., Transcript of JPP Public Meeting 364–67 (Oct. 10, 2014) (testimony of CDR Jonathan Stephens, U.S. Navy, 

Senior Trial Counsel) (noting that even in the Navy and Marine Corps, where investigating officers must be judge 

advocates, investigating officers generally are not military judges and sometimes are either second- or third-tour attorneys 

who lack military justice experience); id. at 335 (testimony of Ms. Miranda Petersen, Program & Policy Director, Protect 

Our Defenders); id. at 368–69 (testimony of MAJ Rebecca DiMuro, U.S. Army, Special Victim Prosecutor).

536 Letter from Mr. Paul S. Koffsky, Deputy General Counsel for Personnel and Health Policy, U.S. Department of Defense, to 

the Honorable Elizabeth Holtzman, Chair, JPP Panel, para. 3 (Oct. 16, 2014) (quoting EO 13669) (citation omitted).

537 U.S. Dep’t of Def., Joint Service Committee on Military Justice, Proposed Amendments to the Manual for CourtsMartial, United States, 79 Fed. Reg. 59,938 (proposed Oct. 3, 2014).

538 Id. at 59,949.

539 Id. at 59,950. The Discussion currently suggests that investigating officers can consider all evidence, even if it would not be 

admissible at trial. 2012 MCM, app. 21, at 27.

540 Id. at 59,941–42. 

541 Id. at 59,938.
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

is commonly offered under the “constitutionally required” exception.542 Defense counsel argued that 

precluding “constitutionally required” M.R.E. 412 evidence at Article 32 hearings would prevent 

the defense from providing information that might undermine the government’s case and would, by 

extension, prevent the convening authority from considering such information in determining the case’s 

disposition.543

According to Mr. Koffsky, the Draft EO is “legally permissible because an accused does not have 

a Sixth Amendment right to confrontation or to present a defense at an Article 32 preliminary 

hearing.”544 Mr. Koffsky added that “[t]he proposed change would eliminate what in practice appears 

to be the most-used Military Rule of Evidence 412 exception and the exception whose application has 

proved the most controversial at Article 32 investigations.”545 The Draft EO would make clear that 

such evidence is not admissible at Article 32 preliminary hearings.

The JPP recognizes that the significant recent changes to the rules governing Article 32 investigations 

will have a substantial impact on the use of M.R.E. 412 evidence at pretrial hearings. The FY14 

NDAA changes to Article 32 of the UCMJ, which took effect on December 26, 2014, limit the purpose 

of the preliminary hearing, the matters that an accused can present, and the ability to require victims 

to appear and testify. EO 13669 also amended R.C.M. 405(i) to clarify for preliminary hearing officers 

their power to exclude evidence and the procedures they should follow when applying M.R.E. 412. 

The JSC Draft EO proposes additionally to eliminate the “constitutionally required” exception to 

M.R.E. 412 at the preliminary hearing, a change that may substantially reduce the frequency with 

which M.R.E. 412 issues are raised at Article 32 hearings. 

These changes must be evaluated in practice before the JPP can provide its full assessment. However, 

information received by the JPP about practices and proceedings conducted before the recent changes 

will provide helpful background for the JPP as it continues to monitor pretrial consideration of M.R.E. 

412 issues and evidence.

542 See, e.g., Transcript of JPP Public Meeting 104–05 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified 

Expert and Attorney-Advisor to the U.S. Army) (discussing practical impact of promulgation of proposed EO). The Air 

Force informed the JPP that investigating officers for Air Force Article 32 hearings already “generally” do not apply the 

“constitutionally required” exception at pretrial hearings. Air Force’s Response to JPP Request for Information 46 (Nov. 6, 

2014).

543 Transcript of JPP Public Meeting 423–46 (Oct. 10, 2014) (testimony of CDR Stephen C. Reyes, U.S. Navy, Director, 

Defense Counsel Assistance Program); see also id. at 434–35 (testimony of MAJ Shari Shugart, U.S. Army, Senior Defense 

Counsel); id. at 429–30 (testimony of Maj Andrea Hall, U.S. Air Force, Senior Defense Counsel) (testifying that while EO 

13669 helped clarify whether M.R.E. 412 evidence could be considered at Article 32 hearings, it was unclear whether the 

“constitutionally required” exception applied, and the issue typically depends on whether the IO is a military judge or not, 

with military judges being more likely to allow M.R.E. 412 issues to be raised at an Article 32 hearing).

544 Letter from Mr. Paul S. Koffsky, Deputy General Counsel for Personnel and Health Policy, U.S. Department of Defense, 

to the Honorable Elizabeth Holtzman, Chair, JPP, para. 4 (Oct. 16, 2014); U.S. Dep’t of Def., Joint Service Committee on

Military Justice, Proposed Amendments to the Manual for Courts-Martial, United States, 79 Fed. Reg. 59,938, 59,950 

(proposed Oct. 3, 2014). The JSC proposal also notes there is no constitutional requirement for a pretrial hearing officer 

to consider evidence under M.R.E. 513(d)(8) and 514(d)(6) at an Article 32 hearing. Id.

545 Letter from Mr. Paul S. Koffsky, Deputy General Counsel for Personnel and Health Policy, U.S. Department of Defense, to 

the Honorable Elizabeth Holtzman, Chair, JPP, para. 4 (Oct. 16, 2014).
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3. Use of M.R.E. 412 Evidence at Courts-Martial (Military Judges’ Consideration of Victims’ Privacy 

Interest)

M.R.E. 412(c) sets forth the procedure to determine the admissibility of relevant evidence offered 

under the three exceptions to the rule. At a closed hearing, the military judge determines whether the 

evidence proffered by the defense 

(1) is relevant to support one of the three M.R.E. 412(b) exceptions, 

(2) meets the rule’s balancing test (i.e., whether “the probative value of such evidence 

outweighs the danger of unfair prejudice to the alleged victim’s privacy”),546 and 

(3) survives any challenge under the M.R.E. 403 balancing test, according to which the 

probative value is outweighed by the danger of unfair prejudice, such as confusion of the 

issues or misleading the panel members, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.547

The M.R.E. 412 balancing test was amended in 2007 to clarify “that in conducting the balancing test, 

the inquiry is whether the probative value of the evidence outweighs the danger of unfair prejudice 

to the victim’s privacy.”548 Four years later, in United States v. Gaddis, the Court of Appeals for the 

Armed Forces found that the balancing test in M.R.E. 412(c)(3) “is needlessly confusing and could 

lead a military judge to exclude constitutionally required evidence.”549 The Court noted that the 

rule does not provide “that if the privacy interest is high, M.R.E. 412 turns into a rule of absolute 

privilege.”550 Therefore, the Court concluded that “the ‘alleged victim’s privacy’ interests cannot 

preclude the admission of evidence ‘the exclusion of which would violate the constitutional rights of 

the accused.’”551 If the evidence is constitutionally required, then the proffered evidence “is admissible 

no matter how embarrassing it might be to the alleged victim.”552

A military justice expert told the JPP that under Gaddis, “the constitutional right to present a defense 

will always trump the victim’s privacy interest.”553 Nevertheless, several presenters testified that 

in practice, when M.R.E. 412 evidence survives application of the balancing test, military judges 

546 M.R.E. 412(c)(3); such evidence is admissible under this rule to the extent an order made by the military judge specifies 

evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

547 Id.

548 2012 MCM, app. 22 at 37; see also M.R.E. 412(c). The amendment is intended to aid practitioners in applying the 

balancing test of M.R.E. 412. Specifically, the amendment clarified: (1) that under M.R.E. 412, the evidence must be 

relevant for one of the purposes highlighted in subdivision (b); (2) that in conducting the balancing test, the inquiry is 

whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim’s privacy; and (3) 

that even if the evidence is admissible under M.R.E. 412, it may still be excluded under M.R.E. 403. See United States v. 

Banker, 60 M.J. 216 (C.A.A.F. 2004).

549 United States v. Gaddis, 70 M.J. 248, 250 (C.A.A.F. 2011).

550 Gaddis, 70 M.J. at 255 (pointing out that “in fact, the Drafters’ Analysis states precisely the opposite) (quoting MCM, 

app. 22 at 35 (“[I]t is the Committee’s intent that the Rule not be interpreted as a rule of absolute privilege.”)).

551 Gaddis, 70 M.J. at 250 (citing M.R.E. 412(b)(1)(C)).

552 Id. at 256.

553 Transcript of JPP Public Meeting 86–87 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army) (noting that Gaddis was a divided opinion but opining that C.A.A.F. “is united in 

its skepticism towards the applicability of this provision and whether the victim’s privacy interest is ever relevant to the 

determination of the admissibility of evidence in a court-martial”).
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frequently issue a narrowly tailored ruling that limits the evidence that is actually presented to the fact 

finder.554

At the JPP October public meeting, some presenters testified that there was considerable uncertainty 

following the Gaddis decision about whether the victim’s privacy interest and the danger of unfair 

prejudice to the victim would be considered by a military judge.555 Noting that military criminal cases 

usually arise in communities with relatively small populations, they observed that the M.R.E. 412 

balancing test accounts for the greater danger in close-knit communities that a victim’s privacy will 

be violated when prior sexual behavior is made part of the record.556 These presenters emphasized the 

“twin purposes” of the military justice system, as described in the preamble to the Manual for CourtsMartial—namely, not only justice but also good order and discipline within the Armed Forces.557 Two 

witnesses told the JPP that the unique nature of military society and justice justifies consideration of 

a victim’s privacy interests in circumstances in which doing so might be constitutionally suspect in 

civilian jurisdictions.558

In a written statement submitted after appearing before the JPP, two presenters urged that the M.R.E. 

412 balancing test be restructured to “clarif[y] that there is no determination of whether evidence 

is constitutionally required until after the military judge first finds that the evidence is relevant, its 

probative value outweighs the unfair prejudice to the victim’s privacy, and its probative value is 

not substantially outweighed by the usual M.R.E. 403 considerations.”559 The presenters further 

advised that M.R.E. 412(c)(3) should be amended to clarify that the victim’s privacy is “a legitimate 

government interest that promotes good order and discipline in the Armed Services.”560

554 See, e.g., Transcript of JPP Public Meeting 448 (Oct. 10, 2014) (testimony of Maj Matthew Powers, U.S. Marine Corps, 

Senior Defense Counsel); id. at 92 (testimony of Mr. William Barto, Highly Qualified Expert and Attorney-Advisor to the 

U.S. Army) (offering as an example that military judges often narrow the scope of permissible cross-examination); Written 

Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel Assistance Program, to JPP para. 3 (Oct. 24, 

2014).

555 See, e.g., Transcript of JPP Public Meeting 87–88 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified 

Expert and Attorney-Advisor to the U.S. Army).

556 Transcript of JPP Public Meeting 89–90 (Oct. 10, 2014) (testimony of Col John Baker, U.S. Marine Corps, Deputy 

Director, Judge Advocate Division).

557 Transcript of JPP Public Meeting 90–91 (Oct. 10, 2014) (testimony of Mr. William Barto, Highly Qualified Expert and 

Attorney-Advisor to the U.S. Army).

558 Id. at 87–91 (testimony of Mr. William Barto, Highly Qualified Expert and Attorney-Advisor to the U.S. Army) (“This 

puts judges in a bit of a conundrum because if they follow the law as promulgated by the President, then they risk an ad 

hoc evaluation of their decision by [CAAF] and their action being deemed unconstitutional. The incentive might be for, 

perhaps, an inexperienced judge . . . to disregard the Military Rule of Evidence and obey the dicta in the [CAAF] decision. 

None of these options are [sic] desirable.”); id. at 89–90 (testimony of Col John G. Baker, U.S. Marine Corps, Deputy 

Director, Judge Advocate Division). In any event, the JPP was advised, certain civilian jurisdictions have “incorporated” 

victim privacy protections into their criminal evidentiary codes in various ways “without raising constitutional issues of 

the sort that the Court of Appeals for the Armed Forces attached such significance to” in Gaddis. Id. at 119–21 (testimony 

of Mr. William Barto, Highly Qualified Expert and Attorney-Advisor to the U.S. Army).

559 Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and Mr. Ryan Guilds, 

Counsel, Arnold & Porter LLP, to JPP 6 of M.R.E. 412 Analysis (Oct. 24, 2014) (“Mil. R. Evid. 412 should be amended 

to explicitly state that victims’ privacy is a legitimate governmental interest that promotes good order and discipline in the 

Armed Services, and should be further revised structurally to address concerns expressed in the Gaddis majority regarding 

the 412 balancing test. The rule should be further revised to make clear that the purpose of the hearing set forth in Mil. R. 

Evid. 412 is not for discovery.”).

560 Id. at 4; id. at 1-2 (quoting Gaddis, 70 M.J. at 252 (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987) (“‘[T]he right to 

present relevant testimony is not without limitation. The right may, in appropriate cases, bow to accommodate other 

legitimate interests in the criminal trial process.’ (citation and quotation marks omitted).”) and citing Delaware v. Van 
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Other presenters who appeared before the JPP defended CAAF’s decision in Gaddis. They argued that 

Gaddis merely recognized that the Constitution is supreme and that all rules—in particular, criminal 

evidentiary rules—must respect it.561 While prefacing his comments by noting that the victim’s privacy 

interest cannot override the accused’s constitutional rights, one presenter observed that M.R.E. 412 

still requires military judges to consider the danger of unfair prejudice and allows them to limit the 

scope of cross-examination.562

Some presenters advised the JPP to recommend that the “constitutionally required” exception of 

M.R.E. 412 be removed.563 They argued that the exception creates no additional requirement, because 

it is already presumed that no statute directs an unconstitutional outcome. Several critics contended 

that the exception does harm by increasing the likelihood of military judges fearing that decisions to 

exclude evidence offered under the exception will be reversed on appeal, potentially resulting in the 

invalidation of courts-martial results.564

Other presenters appearing before the JPP spoke in support of the “constitutionally required” 

exception in M.R.E. 412. A senior military defense counsel pointed out that the President specifically 

and intentionally prescribed the exception. He contended that removing the exception from M.R.E. 

412 would send an inappropriate message about the fairness of the military justice system.565

4. JPP Analysis and Recommendations on M.R.E. 412 Issues

Numerous recent modifications to Article 32 and the rules by which preliminary hearings are 

conducted will change how and how often issues regarding private information about victims will 

be considered. To assess potential effects that may result from modifying M.R.E. 412, the JPP must 

consider the sum of all other changes to the rules for preliminary hearings. The members agree that the 

JPP will continue to monitor M.R.E. 412 issues at Article 32 hearings in light of these changes. 

Although M.R.E. 412 applies to Article 32 hearings, investigating officers (IOs) have used different 

procedures when applying the rule. For instance, some IOs close M.R.E. 412 hearings, whereas others 

do not. The JPP believes that Executive Order 13669’s clarification that IOs assume the same power 

to exclude M.R.E. 412 evidence at an Article 32 hearing as military judges have at courts-martial and 

requiring IOs to utilize M.R.E. 412 procedures at preliminary hearings, makes perfect sense. However, 

IOs may not be military judges, and it is not clear whether IOs will have the background or expertise 

to make these difficult evidentiary decisions. The JPP will monitor how the IOs carry out their duties in 

light of the other changes to Article 32 proceedings.

Arsdall, 475 U.S. 673, 679 (1986); Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973); Washington v. Texas, 388 U.S. 

14, 23, (1967)) (emphasis omitted).

561 See, e.g., Transcript of JPP Public Meeting 161–62 (Oct. 10, 2014) (testimony of Ms. Laurie Rose Kepros, Director of 

Sexual Litigation, Office of (Colorado) State Public Defender).

562 Written Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel Assistance Program, to JPP para. 5 

(Oct. 24, 2014).

563 See, e.g., Transcript of JPP Public Meeting 350 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & Porter 

LLP)); see also id. at 329–30 (testimony of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and 

Mr. Greg Jacob, Policy Director, Service Women’s Action Network).

564 See, e.g., Transcript of JPP Public Meeting 344, 350–53 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold 

& Porter LLP).

565 E.g., Transcript of JPP Public Meeting 422 (Oct. 10, 2014) (testimony of CDR Stephen C. Reyes, U.S. Navy, Director, 

Defense Counsel Assistance Program).
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The JPP supports that portion of the Joint Service Committee’s October 14, 2014, draft Executive 

Order that proposes to eliminate the “constitutionally required” exception of M.R.E 412 at Article 32 

hearings. Defense counsel stated that the change would prevent IOs and convening authorities from 

making proper credibility determinations and would make it impossible for accused military members 

to challenge some victim accounts of alleged incidents. However, the JPP agrees with DoD’s rationale 

that the “constitutionally required” exception is not necessary if there is no right of confrontation at 

the pretrial hearing. Indeed, one JPP member observed that the exception is meaningless if the Sixth 

Amendment’s Confrontation Clause does not apply to Article 32 hearings. Therefore, the members 

supported the JSC’s proposal to remove the language from the rule for the purpose of Article 32 

hearings.

The JPP heard numerous presenters testify that M.R.E. 412 evidence has been unnecessarily admitted 

during Article 32 hearings, thereby jeopardizing victim privacy, and that its primary avenue of 

admission has been the “constitutionally required” exception. Together, procedural changes that were 

enacted in EO 13669 and the proposed elimination of the “constitutionally required” exception in 

M.R.E. 412 at Article 32 hearings should enhance the capability of investigating officers at Article 32 

hearings to properly consider and exclude irrelevant evidence and protect the privacy of victims. 

The proposal submitted to the JPP to recommend elimination of the “constitutionally required” 

exception in M.R.E. 412 at trial is a more complex matter. The UCMJ generally requires the military 

to follow the principles and rules of evidence used in the federal system, and F.R.E. 412 also contains 

“constitutionally required” language. The JPP considered a number of issues related to this exception, 

as detailed below. 

According to M.R.E. 412, the military judge is first required to determine if the evidence offered 

by the accused is relevant to support the exception being raised. The JPP agreed that this relevancy 

determination must be made first, but recognized concerns raised about how military judges are 

determining relevance, especially as it pertains to the “constitutionally required” exception. Two 

presenters suggested that the rule should be restructured. The members agreed that the JPP needs 

more information on how judges make the M.R.E. 412 relevance determination before making a 

recommendation.

The JPP members also reviewed balancing tests used by military judges when determining the 

admissibility of M.R.E. 412 evidence. After establishing that evidence offered by the accused is relevant 

to one of the exceptions, military judges conduct an M.R.E. 412 balancing test to assess whether the 

probative value outweighs the danger of unfair prejudice to the alleged victim’s privacy interest. Judges 

also consider M.R.E. 403 factors to assess whether the probative value of the proffered evidence 

outweighs the danger of unfair prejudice in general. These tests protect the victim’s privacy interest and 

ensure that other dangers of unfair prejudice are appropriately considered. 

Even when the degree of unfair prejudice seems high, current military case law makes clear that 

M.R.E. 412 cannot limit the introduction of evidence required by the Constitution. To give greater 

weight to the victim’s privacy interests in the M.R.E. 412 balancing test, two presenters asserted, 

M.R.E. 412(c)(3) should be amended to specify that a victim’s privacy is “a legitimate interest.” Those 

presenters relied on federal Supreme Court precedent, which notes that relevant testimony may bow 

to accommodate other legitimate interests. The JPP has not yet determined whether a victim’s privacy 

interest should trump a defendant’s right to confrontation at trial when an accused can show that the 

evidence is relevant. The members do not have enough information to make recommendations relating 

to this suggestion to change the language in M.R.E. 412 to establish a “legitimate interest” for the 

victim.
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In sum, the JPP plans to complete its statutory task of reviewing records that deal with M.R.E. 

412 issues and to receive additional evidence before providing recommendations related to the 

“constitutionally required” exception in M.R.E. 412. The JPP recognizes that the “constitutionally 

required” language may be redundant, because a judge must always decide if something is 

constitutionally required, regardless of the language of the rule. However, removing this language 

from the rules for criminal trials may raise other concerns, particularly regarding the balance between 

the rights of defendants and the rights of victims. The members will return to issues relating to the 

“constitutionally required” exception after receiving more evidence about how the rule is being applied 

in practice.

C. MILITARY RULE OF EVIDENCE 513 (PSYCHOTHERAPIST-PATIENT 

PRIVILEGE)

1. The Military’s Rule Pertaining to Victims Mental Health Records

In 1999, the President established M.R.E. 513 as a military rule of privilege to protect the 

communications between patients and psychotherapists.566 M.R.E. 513(a) protects “a confidential 

communication made between the patient and a psychotherapist or an assistant to the psychotherapist, 

in a case arising under the UCMJ, if such communication was made for the purpose of facilitating 

diagnosis or treatment of the patient’s mental or emotional condition.”567 The privilege provided in 

M.R.E. 513 “belongs to the patient,”568 and M.R.E. 513(a) specifies that the patient has “a privilege 

to refuse to disclose and to prevent another person from disclosing a confidential communication.”569

Other persons, including guardians, conservators, and psychotherapists or assistants to 

psychotherapists, may claim the privilege on the patient’s behalf.570

M.R.E. 513 is based on the social benefit of confidential psychotherapist counseling, which was 

recognized in 1996 by the U.S. Supreme Court in Jaffee v. Redmond.

571 In Jaffee, the Supreme Court 

held that communications between a patient and her therapist and the notes taken during their 

counseling sessions were protected from compelled disclosure in a civil proceeding under the general 

566 See Exec. Order No. 13,140, 64 Fed. Reg. 55,115 (Oct. 7, 1999).

567 M.R.E. 513(a).

568 Stacy E. Flippin, Military Rule of Evidence (MRE) 513: A Shield to Protect Communications of Victims and Witnesses to 

Psychotherapists, 2003-SEP Army Law., at 1, 7 (2003).

569 M.R.E. 513(a).

570 Id.

571 Jaffee v. Redmond, 518 U.S. 1 (1996); see 2012 MCM, app. 22, at 45 (“Rule 513 clarifies military law in light of the 

Supreme Court decision Jaffee . . . . In keeping with American military law since its inception, there is still no physicianpatient privilege for members of the Armed Forces. See analyses for Rule 302 and 501.”); see also Flippin, supra note 568, 

at 7 (detailing the development of M.R.E. 513).
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rule of privilege in F.R.E. 501.572 M.R.E. 513 was also based on the proposed F.R.E. 504,573 although 

F.R.E. 504 was never adopted. 

In explaining the nature of the privilege in M.R.E. 513, a presenter told the JPP that different privileges 

provide varying degrees of protection for covered communications.574 The M.R.E. 513 psychotherapistpatient privilege is a qualified privilege, because the rule provides the military judge the authority to 

conduct an in camera review and apply a balancing test to determine whether to release the records.575

This is in contrast to other privileges in M.R.E.s 502, 503, and 504—the attorney, spouse, and clergy 

privileges, respectively—which do not provide the military judge with authority to conduct an in 

camera review of protected material.576

Exceptions to the privilege provided in M.R.E. 513 were “developed to address the specialized society 

of the military and separate concerns that must be met to ensure military readiness and national 

security.”577 M.R.E. 513(d) specifies eight exceptions when the privilege will not apply: 

1. when the patient is dead; 

2. when the communication is evidence of child abuse or of neglect, . . .;

3. when federal law, state law, or service regulation imposes a duty to report information 

contained in a communication;

4. when a psychotherapist or assistant to a psychotherapist believes that a patient’s 

mental or emotional condition makes the patient a danger to any person, including 

the patient;

5. if the communication clearly contemplated the future commission of a fraud or 

crime . . . ;

6. when necessary to ensure the safety and security of military personnel, military 

dependents, military property, classified information, or the accomplishment of a 

military mission;

572 Jaffee, 518 U.S. at 2. The Jaffee case involved a police officer who sought counseling after shooting and killing a suspect. 

The survivors of the suspect filed a civil suit, claiming civil rights violations by the police officer. Id. at 4–5. At trial, the 

court instructed the jury they could infer that the defendant’s refusal to turn over records was evidence that the records 

contained unfavorable information. The jury ruled for the plaintiffs and awarded damages. The defendant police officer 

appealed, arguing she had a psychotherapist-patient privilege to refuse to release her records. Id. at 5–6. The Supreme 

Court interpreted F.R.E. 501 to create a federal psychotherapist-patient privilege in civil proceedings and referred federal 

courts to state laws to determine the extent of that privilege. Id. at 15.

573 Proposed F.R.E. 504, which was not adopted, would have created a psychotherapist-patient privilege substantially similar 

to M.R.E. 513, and would have provided: “General rule of privilege. A patient has a privilege to refuse to disclose and to 

prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment 

of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are 

participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s 

family.” F.R.E. app. II (Rule 504(b)). Privileges under the Federal Rules of Evidence are set out in F.R.E. 501 (Privileges 

in General) and F.R.E. 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). Any claim of privilege 

under a psychotherapist-patient doctrine in federal court is addressed by F.R.E. 501, which states, “The common law—as 

interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the 

following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.”

574 Written Statement of Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas, to JPP 2 n.2 (Oct. 10, 2014).

575 Schimpf, supra note 494, at 173; Flippin, supra note 568, at 7 (asserting that overall, M.R.E. 513 affords more protections 

to statements of victims than to statements of accuseds).

576 Schimpf, supra note 494, at 173.

577 2012 MCM, app. 22 at 45.
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7. when an accused offers statements or other evidence concerning his mental condition 

in defense, extenuation, or mitigation . . . ; 

8. when admission or disclosure of a communication is constitutionally required.578

The analysis to M.R.E. 513 explains that the exceptions “are intended to emphasize that military 

commanders are to have access to all information that is necessary for the safety and security of 

military personnel, operations, installations, and equipment.”579 Therefore, if an exception applies, 

“psychotherapists are to provide such information despite a claim of privilege.”580

Criminal defendants to sexual assault charges may have sound reasons for pursuing information 

from a victim’s mental health records. A defendant may seek access to determine whether the victim 

made statements to his or her psychotherapist that are either exculpatory for an accused or impeach 

the victim’s credibility, such as prior inconsistent statements or evidence of bias, prejudice, or motive 

to misrepresent.581 Alternatively, a defendant may seek mental health record information to discover 

whether the victim is taking prescription medication that might alter his or her ability to accurately 

recall or comprehend the incident in question.582 However, claims of interest must be balanced against 

the concern that misuse of evidence pertaining to mental health records may lead to an attack on the 

victim’s character rather than introducing or considering relevant information.583

When an exception to the rule’s privilege is asserted, M.R.E. 513(e) provides procedures for the 

military judge to determine the admissibility of patient records or communications, which include the 

requirement to conduct a hearing at which the patient may appear and be heard.584 If necessary to rule 

on its admissibility, the military judge may conduct an in camera review of the evidence or a proffer of 

it. If the military judge determines that an exception applies, he or she may issue protective orders or 

admit only portions of the evidence. 

The scope of protection and procedures provided in M.R.E. 513 have been the subject of recent public 

consideration, and Congress directed a number of significant changes to M.R.E. 513 in the FY15 

NDAA. Section 537 requires the following modifications to the rule, effective on June 17, 2015:

• include communications with other licensed mental health within the communications covered 

by the privilege;

578 M.R.E. 513(d).

579 2012 MCM, app. 22 at 45.

580 Id.

581 M.R.E. 608(c) allows an accused to admit such evidence “to impeach the witness either by examination of the witness or 

by evidence otherwise adduced.”

582 Transcript of JPP Public Meeting 438–39 (Oct. 10, 2014) (testimony of MAJ Shari Shugart, U.S. Army, Senior Defense 

Counsel).

583 For instance, in the 1991 Florida sexual assault trial of William Kennedy Smith, defense attorneys alleged that the victim 

had a “psychological disorder that led her to make false allegations.” Defense attorneys said they had “strong and 

compelling evidence” that the victim was mentally unstable. They sought permission to examine “all relevant records of 

psychological or psychiatric treatment” that she might have received. In the end, the judge in the case declined to let the 

jury hear evidence of the victim’s psychiatric history, but the controversy over her background received wide attention in 

the news media, which was freely available to potential jurors. Smith was acquitted. Jeffrey Toobin, The Consent Defense, 

Rape Laws May Have Changed, But Questions About the Accuser Are Often the Same, The New Yorker, Sept. 1, 2003, 

at 43.

584 M.R.E. 513(e).
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• eliminate the rule’s “constitutionally required” exception (M.R.E. 513(d)(8));

• clarify the burden on the party seeking production or admission of protected communications 

or records;

• revise the standard for when a military judge can conduct an in camera review of 

communications or records; and

• require that any production or disclosure permitted by the military judge be narrowly 

tailored to only the specific records or communications, or portions of them, that meet the 

requirements for one of the enumerated exceptions to the privilege.585

The JPP recognizes that the FY15 NDAA modifications to M.R.E. 513 will change procedures and 

common practices for accessing and introducing mental health records and communications in judicial 

proceedings, particularly insofar as they eliminate the “constitutionally required” exception and 

establish standards for the initial hearing and in camera review. Although testimony and information 

received by the JPP regarding M.R.E. 513 addressed the rule prior to these amendments, they remain 

relevant as the JPP considers the issues they raise and assesses whether the revisions, as implemented, 

resolve problems with the privilege. 

In addition, Section 537 addresses only procedures and practice for accessing mental health records 

in military judicial proceedings. The JPP reviewed how mental health care information for military 

members is protected outside of the judicial process and considered the ways in which the information 

may be accessed, which also affect the privacy interest of sexual assault victims. 

2. Privacy Protection for Service Members’ Mental Health Care Information

Laws and regulations protect the records and privacy interests of military members who seek mental 

health care, but provisions permit such information to be disclosed in certain circumstances. These 

exceptions are often based on obligations that do not exist outside the military, such as requirements 

for commanders to ensure a member’s fitness for duty or fitness to perform a particular mission.586

In general, personal medical information, including information about mental health care, is protected 

from release by 45 C.F.R. Part 164, Subpart E,587 which establishes privacy regulations for the use and 

disclosure of protected health information in compliance with the Health Insurance Portability and 

Accountability Act of 1996 (HIPAA).588 Personal medical records are also protected records under the 

Privacy Act.589

HIPAA and Privacy Act requirements apply to DoD, which has implemented rules to cover protected 

health information and personally identifiable health information with limited exceptions consistent 

585 FY15 NDAA, Pub. L. No. 113-291, § 537, 128 Stat. 3292 (2014).

586 See Services’ Responses to JPP Request for Information 49 (Nov. 6, 2014).

587 Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 164, Subpart E (2000).

588 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996). 

Privacy protections under HIPAA prohibit disclosure of the existence of an individual’s protected records or the release 

of those records, except in certain circumstances. The HIPAA Privacy Rule provides federal protections for individually 

identifiable health information, held by a covered entity, which concerns the health status, provision of health care, or 

payment for health care that can be used to identify an individual. 45 C.F.R. § 160.103 (2000).

589 5 U.S.C. § 552a (2012); see also generally U.S. Dep’t of Def., Instr. 6025.18, Privacy of Individually Identifiable Health

Information in DoD Health Care Programs (Dec. 2, 2009), available at http://www.dtic.mil/whs/directives/corres/

pdf/602518p.pdf.
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with HIPAA’s privacy requirements.590 Department of Defense Instruction (DoDI) 6490.08, Command 

Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members, 

specifically requires DoD to “foster a culture of support in the provision of mental health care 

in order to dispel the stigma of seeking mental health care.”591 Health care providers “are not to 

notify a Service member’s commander when the Service member obtains mental health care” unless 

specific circumstances related to fitness and suitability for military service make disclosure necessary. 

In such cases, the instruction requires health care providers to “provide the minimum amount of 

information . . . as required to satisfy the purpose of the disclosure.”592

a. Disclosure to Commanders for Fitness for Duty Purposes

While limiting disclosure from health care providers, DoD Regulation 6025.18-R, DoD Health 

Information Privacy Regulation, permits commanders to use or have access to protected health 

information, including mental health treatment information, “to determine a member’s fitness for 

duty.”593 No authorization from the patient is required when disclosure “[i]s necessary to prevent or 

lessen a serious and imminent threat to the health or safety of a person or the public and is to a person 

or persons reasonably able to prevent or lessen the threat, including the target of the threat.”594

Specific regulations implemented by the military Services provide additional guidance, and they 

differ regarding how much information, if any, is provided to commanders, down to the company 

grade level, when a Service member has sought medical care for reasons related to mental health. For 

example, Army Regulation 40-66 mandates that commanders may be given access to treatment records 

when necessary, but they still must “ensure that information . . . is kept private and confidential,” 

and must keep the information secure.595 Air Force Instruction 44-109 mandates that commanders be 

notified when one of their personnel is placed on or removed from the HIL (High Interest Log) because 

he or she is at “serious risk” of harming him- or herself or others.596 Protected health information 

includes medical and mental health records.597

590 See generally U.S. Dep’t of Def., Dir, 6025.18-R, DoD Health Information Privacy Regulation para. C1.1 (Jan. 24, 

2003), available at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf.

591 U.S. Dep’t of Def., Instr. 6490.08, Command Notification Requirements to Dispel Stigma in Providing Mental Health

Care to Service Members para. 3.a (Aug. 17, 2011), available at http://www.dtic.mil/whs/directives/corres/pdf/ 

649008p.pdf.

592 Id. at para. 3.b, encl. 2 para. 1b, para. 3.b.2.

593 U.S. Dep’t of Def., 6025.18-R, DoD Health Information Privacy Regulation para. C7.11.1.3.1 (Jan. 24, 2003).

594 Id. at C7.10.1.1.; see also U.S. Dep’t of Def., Instr. 6025.18, Privacy of Individually Identifiable Health Information

in DoD Health Care Programs encl. 2, para 1c. (Dec. 2, 2009) (stating that “healthcare providers shall provide the 

minimum amount of information to satisfy the purpose of the disclosure”).

595 U.S. Dep’t of Army, Reg. 40-66, Medical Record Administration and Healthcare Documentation para. 1-4 (Jan. 4, 

2010), available at http://armypubs.army.mil/epubs/pdf/r40_66.pdf.

596 U.S. Dep’t of Air Force, Instr. 44-109, Mental Health, Confidentiality, and Military Law 10 (July 17, 2014), available 

at http://static.e-publishing.af.mil/production/1/af_sg/publication/afi44-109/afi44-109.pdf.

597 For instance, protected health information (PHI) may be used or disclosed with the patient’s consent. PHI may be released 

as ordered by and only to the extent authorized by court order or administrative subpoena. PHI of military members 

may be released to the appropriate military command authority to assure proper execution of the military mission 

and determine the member’s fitness for duty. PHI may be released for a law enforcement purpose to a law enforcement 

official, in compliance with and as limited by relevant requirements of a subpoena, summons or investigative demand, 

if the information sought is relevant and material to a legitimate law enforcement inquiry; the request is in writing, 

specific and limited in scope to the information that is sought; and information that does not identify the individual could 

not reasonably be used. PHI may be released in response to a law enforcement official’s request for such information 
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The JPP recognizes that such disclosure is limited to commanders to determine fitness for duty and is 

not an appropriate means for obtaining mental health records for use in military judicial proceedings. 

b. Disclosure for Law Enforcement Purposes

In general, military treatment facilities may not release protected health information, including 

information about mental health treatment, pertaining to a victim of a crime without specific 

authorization from the individual, but there are exceptions. According to section C7.6.1.2.3.1 of DoD 

6025.18-R, protected health information may be released without a crime victim’s consent to a law 

enforcement official in response to an administrative request if the “information sought is relevant and 

material to a legitimate law enforcement inquiry.”598 The definition of “law enforcement official”—a 

person empowered by law to “[i]nvestigate or conduct an official inquiry into a potential violation of 

law” or “[p]rosecute or otherwise conduct a criminal, civil, or administrative proceeding arising from 

an alleged violation of law”—includes both military investigators and prosecutors.599 To obtain access 

without the victim’s authorization, the requestor must indicate that the individual’s consent for release 

cannot be obtained because of incapacity or other emergency circumstance, that the information “is 

needed to determine whether a violation of law by a person other than the victim has occurred, and 

[that the] information is not intended to be used against the victim.”600

Some Service regulations provide additional guidance in this area. Air Force Instruction 44-109, 

Mental Health, Confidentiality, and Military Law, provides that “confidential communications will be 

disclosed to persons or agencies with a proper and legitimate need for the information and who are 

authorized by law or regulation to receive it,” unless the evidence is privileged under M.R.E. 513.601

When information is requested for a criminal investigation, the military treatment facility must first 

determine if such disclosure is authorized by an applicable exception to the M.R.E. 513 privilege. 

Army Regulation 40-66, Medical Record Administration and Healthcare Documentation, requires 

that when treatment records are sought for criminal investigations, a records custodian must review 

the requests and determine what information will be provided.602 According to Army Regulation 195-

2, Criminal Investigation Activities, which cites DoD 6025.18-R, medical records remain under the 

control of the records custodian, who will make either the records or legible certified copies available 

for judicial, non-judicial, or administrative proceedings.603

regarding a crime victim only if the victim consents; or, if the victim is unable to consent or there is some other emergency 

circumstance. If the victim is unable to consent, law enforcement must represent that the information won’t be used 

against the victim and the information is necessary to investigate a crime committed by someone other than the victim. 

U.S. Dep’t of Def., 6025.18-R, DoD Health Information Privacy Regulation (Jan. 24, 2003).

598 Id. at para. C7.6.1.2.3. This DoD guidance applies only to treatment records that are maintained or controlled by a 

military treatment facility. Treatment records and information that are outside DoD control may be obtained only with the 

consent and authorization of the individual or by subpoena.

599 Id. at para. DL1.1.22.

600 Id. at paras. C7.6.3.

601 U.S. Dep’t of Air Force, Instr. 44-109, Mental Health, Confidentiality, and Military Law paras. 2.1–2.5 (July 17, 

2014).

602 U.S. Dep’t of Army, Reg. 40-66, Medical Record Administration and Healthcare Documentation para. 5-23.e (Jan. 4, 

2010).

603 U.S. Dep’t of Army, Reg. 195-2, Criminal Investigation Activities para. 3-17.b (June 9, 2014), available at 

http://www.apd.army.mil/pdffiles/r195_2.pdf.
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There is no requirement to notify victims before any government representative, including 

investigators, commanders, or prosecutors, takes action to obtain their mental health records, but 

DoD policy allows individuals to request information about when their protected health information is 

disclosed without their authorization. DoD 6025.18-R, paragraph C13.1.2.1, permits military criminal 

investigators to request in writing that such notice be temporarily suspended if disclosure would likely 

impede an investigation.604

The JPP recognizes that such disclosure is limited to law enforcement investigative purposes and is not 

an appropriate means for obtaining mental health records for use in military judicial proceedings. 

3. Disclosure of Mental Health Records in Military Judicial Proceedings

a. Disclosure for Pretrial Purposes and at Article 32 Hearings

In their responses to the JPP’s requests for information, the Services described common approaches and 

practices regarding pretrial access to the mental health records of victims.605 The Air Force informed 

the JPP that its trial counsel generally do not seek consent to the release of victims’ mental health 

records, but that some counsel have sought non-military victims’ assistance “in securing such records, 

sealed, in anticipation of litigation under MRE 513(d)(8) regarding in camera review.” The Air Force 

advised that “[s]uch a practice may be beneficial as it may avoid a delay in trial,” but noted that the 

Service’s trial counsel “routinely object to review and release of such information and aggressively 

litigate the issues in pretrial proceedings.” Moreover, according to the Air Force, there is no known 

case in which an Article 32 investigating officer actually conducted an in camera review and released 

records under the procedure that applies to military judges regarding disclosures as set forth in M.R.E. 

513 (e).606

According to the Navy, “[u]nless specifically relevant to the determination of probable cause,” mental 

health records that are requested from military medical providers “are separated from medical records 

and sealed unless directed open by a military judge.” While “no specific regulations or policies” other 

than R.C.M. 405 and M.R.E. 513 govern the handling of mental health information by Article 32 

investigating officers, convening authorities “often include guidance in the appointing order directing 

specific protections, and investigating officers are trained to follow the restrictions of MRE 500 

(series).”607

Similarly, the Marine Corps’ response stated that M.R.E. 513 information “should not be released by 

an Article 32 hearing officer,” and if inadvertently obtained or disclosed it “will be sealed pursuant to 

RCM 1103A.” Marine Corps trial counsel do “not provide any MRE 513 materials to the defense at 

Article 32 hearings.”608

The Coast Guard’s response noted that the analysis of R.C.M. 405(i) suggests that investigating officers 

can preserve and protect private information contained in victims’ mental health records. The Coast 

Guard added that “[t]his [rule’s] guidance [for Article 32 hearings] is modeled after the processes 

604 U.S. Dep’t of Def. Dir. 6025.18-R, DoD Health Information Privacy Regulation para. C13.1.2.1 (Jan. 24, 2003).

605 See Services’ Responses to JPP Request for Information 49 (Nov. 6, 2014).

606 Air Force’s Responses to JPP Requests for Information 49, 51 (Nov. 6, 2014).

607 Navy’s Responses to JPP Requests for Information 49, 51 (Nov. 6, 2014).

608 Marine Corps’ Responses to JPP Requests for Information 46, 51 (Nov. 6, 2014).
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used by military judges at courts-martial, and thus the two are similar,” except that investigating 

officers lack the authority to seal an exhibit.609 The Army similarly highlighted the power of 

investigating officers under R.C.M. 405, as modified by EO 13669, to exclude evidence from pretrial 

investigations.610

While the Services’ explanations indicate a generally consistent approach for safeguarding a victim’s 

mental health records before a military judge is detailed to a case, military justice practitioners 

appearing before the JPP provided differing perspectives on how mental health records are handled 

in practice. For instance, an Army trial counsel told the JPP that “overall in the field mental health 

records are being protected better.”611 In contrast, a defense counsel said it was “easy” to have mental 

health records “turned over,” for use by both the government and the accused.612 A special victims’ 

counsel and a civilian victim advocate told the JPP that mental health records are routinely obtained 

from the medical facility, sealed, and brought to court before a M.R.E. 513 motion is even litigated, 

rather than waiting until a military judge rules on a M.R.E. 513 motion and orders records to be 

produced, as required by the rule.613

According to the Services, EO 13669 has had little effect on how M.R.E. 513 issues are litigated at 

Article 32 hearings.614 The Air Force noted that EO 13669 “has not had significant impact [because] 

MRE 513 issues have rarely been raised during Article 32 investigations.”615 One presenter agreed with 

the general assessment that M.R.E. 513 evidence typically does not “come out” until after charges 

have been referred to a court-martial with a military judge presiding.616 Air Force IOs understand the 

text of M.R.E. 513 and R.C.M. 405(i) as not giving them the power to order disclosure of victims’ 

mental health records. Instead of requesting such records, defense counsel typically seek to ascertain 

merely whether a victim has received counseling and, if so, of what nature. The Marine Corps similarly 

indicated that for M.R.E. 513 issues as for M.R.E. 412 issues, EO 13669 has had “little impact” on its 

Article 32 hearings, where investigating officers have “always” decided whether an exception has been 

satisfied only after the parties have litigated whether protected evidence should be disclosed.617

Recent legislative and executive changes will likely substantially reduce issues regarding consideration 

of mental health records at Article 32 hearings. Amendments in the FY14 NDAA revised Article 32 

procedures, and EO 13669 clarified the power of investigating officers to exclude evidence at Article 

32 hearings and to use the procedures used by military judges at trial. The proposed draft Executive 

Order that was published on October 3, 2014, would grant the preliminary hearing officer authority 

to seal records under R.C.M. 1103A. The FY15 NDAA eliminated the “constitutionally required” 

609 Coast Guard’s Response to JPP Request for Information 51 (Nov. 6, 2014).

610 Army’s Response to JPP Request for Information 51 (Nov. 6, 2014).

611 Transcript of JPP Public Meeting 372 (Oct. 10, 2014) (testimony of MAJ Rebecca DiMuro, U.S. Army, Special Victim 

Prosecutor).

612 Transcript of JPP Public Meeting 437 (Oct. 10, 2014) (testimony of MAJ Shari Shugart, U.S. Army, Senior Defense 

Counsel).

613 Transcript of JPP Public Meeting 243 (Nov. 14, 2014) (testimony of Capt Aaron Kirk, U.S. Air Force, Special Victims’ 

Counsel); Transcript of JPP Public Meeting 309–11 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & 

Porter LLP).

614 Services’ Responses to JPP Request for Information 46 (Nov. 6, 2014).

615 Air Force’s Response to JPP Request for Information 46 (Nov. 6, 2014).

616 Transcript of JPP Public Meeting 338–39 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP).

617 Marine Corps’ Response to JPP Request for Information 46 (Nov. 6, 2014).
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exception to M.R.E. 513. The JPP will continue to monitor M.R.E. 513 issues in Article 32 hearings in 

light of these changes.

b. Seeking an Interlocutory Ruling for Production or Admission of Mental Health Records

Once charges are referred to trial and a court-martial is convened, the military judge who is 

detailed to the case serves as the presiding officer with authority and responsibility for court-martial 

proceedings.618 This includes responsibility for controlling the production or admission of mental 

health communications or records. A party seeking the production or admission of such information 

must file a written motion with the military judge and all parties at least five days before pleas are 

entered, specifically describing the evidence and stating the purpose for which it is sought or offered.619

The motion must be served on the opposing party and the military judge. The party seeking the 

information must also, “if practical, notify the patient or the patient’s guardian, conservator, or 

representative that the motion has been filed and that the patient has an opportunity to be heard . . . .”620

The practice and rules governing motions at courts-martial are set forth in R.C.M.s 905 and 906. The 

burden of proof for most factual issues decided by motion is a preponderance of the evidence, and it is 

assigned to the party filing the motion.621 In practice, motions under M.R.E. 513 are most often filed 

by the defense, seeking the production and admission of the victim’s mental health records. Thus, the 

defense usually has the burden of proof. 

c. Initial Hearing

Before ordering that evidence of a patient’s records or communication be produced or admitted, the 

military judge has always been required by M.R.E. 513 to conduct a hearing,622 which may be closed 

for good cause shown (upon the motion of counsel for either party). The parties may call witnesses at 

the hearing, including the patient, and offer other relevant evidence. M.R.E. 513(e)(2) requires that “[t]

he patient shall be afforded a reasonable opportunity to attend the hearing and be heard,” but “the 

proceedings shall not be unduly delayed for this purpose.”623

Presenters told the JPP that some judges order records to be produced for an in camera inspection 

without requiring the defense to meet its burden of proof.624 Two witnesses said that military judges 

cite the “constitutionally required” exception of M.R.E. 513 to justify automatic in camera review of 

all mental health records, which often results in fishing expeditions for information, contrary to the 

intent of the rule.625

618 See R.C.M. 501–503.

619 M.R.E. 513(e)(1)(A). The military judge may alter the rule’s five-day requirement for good cause shown.

620 M.R.E. 513(e)(1)(B).

621 R.C.M. 905(c), (d).

622 In a case before a court-martial composed of a military judge and members (a jury trial), the hearing must be conducted 

outside the presence of the members.

623 M.R.E. 513(e)(2).

624 E.g., Transcript of JPP Public Meeting 266 (Oct. 10, 2014) (testimony of Ms. Miranda Petersen, Program and Policy 

Director, Protect Our Defenders).

625 Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, to JPP para. 7 (Oct. 10, 

2014); Transcript of JPP Public Meeting 264 (Oct. 10, 2014) (testimony of Ms. Petersen); Written Statement of Mr. Ryan 

Guilds, Counsel, Arnold & Porter LLP, to JPP para. 10 (Oct. 10, 2014); Transcript of JPP Public Meeting 274 (Oct. 10, 
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

Other presenters told the JPP that in camera reviews of mental health records have not been automatic 

in their experience and that records were not requested until after a motion for the review is filed 

and reviewed.626 More specifically, several military counsel testified that military judges apply the 

threshold test for in camera review that is set forth in United States v. Klemick, a 2006 decision of 

the Navy-Marine Corps Court of Appeals.627 The Klemick test imposes three requirements before a 

military judge may order an in camera review: (1) the defense must provide a “specific factual basis 

demonstrating a reasonable likelihood that the requested privileged records would yield” evidence 

admissible under an M.R.E. 513 exception; (2) the information sought must not merely prove the same 

point as other available information; and (3) the defense must have made “reasonable efforts to obtain 

the same or substantially similar information through non-privileged sources.”628 One presenter added 

that even when military judges find an in camera review of M.R.E. 513 evidence to be warranted after 

applying the Klemick test, they often exercise their discretion to limit the scope of examination or of 

such evidence that counsel can introduce.629

The FY15 NDAA modifications to M.R.E. 513 incorporate the Klemick standards and directly address 

the requirements for the moving party to meet new standards at the initial hearing: 

(A) to show a specific factual basis demonstrating a reasonable likelihood that the records or 

communications would yield evidence admissible under an exception to the privilege; 

(B) to demonstrate by a preponderance of the evidence that the requested information meets 

one of the enumerated exceptions to the privilege;

(C) to show that the information sought is not merely cumulative of other information 

available; and

2014) (testimony of Mr. Guilds); Written Statement of Ms. Petersen and Mr. Guilds, Counsel, Arnold & Porter LLP, to 

JPP 1 of M.R.E. 513 Analysis (Oct. 24, 2014) (quoting 2012 MCM Analysis) (emphasis omitted).

626 Transcript of JPP Public Meeting 125–26 (Oct. 10, 2014) (testimony of Col John G. Baker, U.S. Marine Corps, Deputy 

Director, Judge Advocate Division); Written Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel 

Assistance Program, to JPP para. 3 (Oct. 24, 2014); see also Transcript of JPP Public Meeting 405–07 (Oct. 10, 2014) 

(testimony of CDR Jonathan Stephens, U.S. Navy, Senior Trial Counsel) (explaining that mental health records are now 

“very, very closely guarded” by the legal offices at Navy hospitals pursuant to Navy regulations, and testifying that 

although he could recall “being able to just ask for” victims’ mental health records and “just g[etting] them” when he was 

a defense counsel ten years ago, “now they are not freely turned over”); Transcript of JPP Public Meeting 242 (Nov. 14, 

2014) (testimony of CDR Colleen Shook, U.S. Navy, Officer-in-Charge, Victims’ Legal Program Mid-Atlantic) (testifying 

that unlike when she “came onboard,” VLCs now lately “have been pretty successful at keeping [M.R.E. 513 evidence] 

protected”).

627 65 M.J. 576 (N-M. Ct. Crim. App. 2006). The Court of Appeals for the Armed Forces did not review the Klemick case 

or the Navy-Marine court’s analysis, but CAAF has subsequently cited the Klemick case positively in other contexts. See 

L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013). The Klemick opinion is authoritative only for Navy and Marine 

Corps cases, but several military counsel told the JPP that military judges in the other military Services also apply the 

Klemick test. See Transcript of JPP Public Meeting 378 (Oct. 10, 2014) (testimony of Maj Pete Houtz, U.S. Marine Corps, 

Regional Trial Counsel); id. at 404 (Oct. 10, 2014) (testimony of Lt Col Brian Thompson, U.S. Air Force, Chief Senior 

Trial Counsel) (noting that there is no other guidance requiring a higher burden); id. at 443 (testimony of Maj Matthew 

Powers, U.S. Marine Corps, Senior Defense Counsel); id. at 431–32 (testimony of Maj Andrea Hall, U.S. Air Force, 

Senior Defense Counsel); Written Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel Assistance 

Program, to JPP para. 3 (Oct. 24, 2014); Transcript of JPP Public Meeting 242 (Nov. 14, 2014) (testimony of CDR 

Colleen Shook, U.S. Navy, Officer-in-Charge, Victims’ Legal Program Mid-Atlantic); id. at 243 (testimony of Capt Aaron 

Kirk, U.S. Air Force, Special Victims’ Counsel); Navy’s Response to JPP Request for Information 49 (Nov. 6, 2014).

628 United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006).

629 Written Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel Assistance Program, to JPP para. 3 

(Oct. 24, 2014).
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(D) to show that the moving party made reasonable efforts to obtain the same or substantially 

similar information through non-privileged sources.630

The modifications to M.R.E. 513 in the FY15 NDAA will change how military judges consider M.R.E. 

513 issues and when they will conduct in camera reviews of evidence. The revised rule will permit in 

camera review of records only when the moving party has met its burden at the initial hearing and an 

examination of the information is necessary to rule on whether protected records or communications 

should be produced or admitted.631 The JPP will continue to monitor how M.R.E. 513 matters are 

addressed by military judges in light of these changes. 

d. In Camera Inspection of Mental Health Records

Numerous presenters told the JPP that defense counsel in civilian criminal proceedings seeking in 

camera reviews of psychotherapist communications and orders of production by a judge must meet 

a strict burden of proof, and that reviews and orders for production often are not granted.632 In most 

jurisdictions, a general assertion by a defendant that he or she needs a complainant’s counseling 

records to attack the accuser’s credibility or to develop possible areas of attack is insufficient to 

justify an in camera review.633 In a significant number of jurisdictions, a defendant may not access the 

victim’s mental health records unless the defendant can establish a “factual predicate” that there is 

information in the records that would demonstrate “the unreliability of either the criminal charge or 

the complaining witness.”634 Other courts have found that a defendant must “establish a reasonable 

likelihood that the privileged records contain exculpatory information.”635

According to civilian experts who testified before the JPP, the defense must meet various standards to 

trigger in camera reviews in state and federal courts. One expert testified that while courts have used 

“dozens of different phrases”—such as a “reasonable ground to believe, a reasonable probability, 

a reasonable belief, a reasonable likelihood”—all such judicial formulas require more than mere 

speculation that because a victim received mental health treatment, such records might contain 

information that would be useful to the defense.636

Some presenters told the JPP that the military’s standard for in camera review of M.R.E. 513 evidence 

should be further clarified, requiring the defense to show with greater certainty that material evidence 

is contained in the victim’s mental health records.637 Professor Clifford Fishman, who proposed a 

630 FY15 NDAA, Pub. L. No. 113-291, § 537(3), 128 Stat. 3292 (2014).

631 Id. 

632 Transcript of JPP Public Meeting 215–17 (Oct. 10, 2014) (testimony of Ms. Jennifer Long, Director, Æquitas); id. at 253 

(testimony of Ms. Patricia Powers, Senior Deputy Prosecuting Attorney, Yakima County (Wash.) Prosecuting Attorney’s 

Office). 

633 E.g., Transcript of JPP Public Meeting 216 (Oct. 10, 2014) (testimony of Ms. Jennifer Long, Director, Æquitas).

634 See 1 Paul DerOhannesian II, Sexual Assault Trials 23–25 (Matthew Bender 3d ed. 2006).

635 Id. 

636 Transcript of JPP Public Meeting 191 (Oct. 10, 2014) (testimony of Prof. Clifford S. Fishman, Catholic University School 

of Law); see also Clifford S. Fishman, Defense Access to a Prosecution Witness’s Psychotherapy or Counseling Records, 

65 Or. L. Rev. 1, 50 (2007); Written Statement of Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas, to JPP 3 & n.8 

(Oct. 10, 2014) (citing Michigan requirements of “reasonable probability” and “particularized need”); Transcript of JPP 

Public Meeting 202–07 (Oct. 10, 2014) (testimony of Ms. Laurie Rose Kepros, Director of Sexual Litigation, Office of 

(Colorado) State Public Defender) (describing Colorado’s waiver standard).

637 Transcript of JPP Public Meeting 192-95, 222-23 (Oct. 10, 2014) (testimony of Prof. Clifford S. Fishman, Catholic 
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probable cause standard, explained that courts must protect against fishing expeditions but must 

also accommodate the accused’s lack of concrete knowledge. While acknowledging that in camera

reviews do intrude into the privacy of witnesses, Professor Fishman said the intrusion associated with 

a probable cause standard is relatively minor and controlled; only after the judge determines, upon 

reviewing the records, that the defense has satisfied the higher burden will it go further.638 Other 

presenters proposed even higher standards to trigger in camera review, such as showing “clear and 

convincing evidence” or functional necessity.639

If the military judge must examine the records at issue before ruling on the motion, he or she must do 

so in camera.

640 Changes to M.R.E. 513 made by the FY15 NDAA will clarify that a military judge 

may conduct an in camera review only when the moving party has met its burden at the hearing and 

an examination of the information is necessary to rule on the production or admissibility of protected 

records or communications.641

e. Production or Admission of Mental Health Records 

Once the moving party meets its burden for production or admission of M.R.E. 513 evidence, the rule 

is silent regarding the legal standard a military judge must apply, other than requiring any production 

to be narrowly tailored. Unlike M.R.E. 412, which provides specific guidance to determine relevancy 

and weigh factors in the appropriate balancing tests, M.R.E. 513 offers no other standards to assist 

military judges in determining what records or communications should be disclosed or admitted. 

One reviewer proposed that M.R.E. 513 should be modified to add a standard for review similar 

to that found in M.R.E. 412.642 M.R.E. 412(c)(3) states that evidence is admissible under the rule if 

the military judge determines that it is relevant for a specified purpose and that its probative value 

outweighs the danger of unfair prejudice to the alleged victim’s privacy. The reviewer asserted that 

establishing a relevancy requirement and balancing test as the standard for disclosure and admissibility 

could clarify the military judge’s determination and make reviews of M.R.E. 513 evidence more 

uniform.643

Information from presenters did not clarify for the JPP what standard military judges currently apply, 

or should apply, for disclosing M.R.E. 513 evidence to the defense after in camera review. One military 

defense counsel told the JPP that military judges “often times” do not release records after reviewing 

them in camera, but she did not describe a standard that the military judges used in arriving at their 

University School of Law) (articulating proposal); accord id. at 222–23; see id. at 224–25 (testimony of Ms. Laurie Rose 

Kepros, Director of Sexual Litigation, Office of (Colorado) State Public Defender) (supporting proposal); id. at 369–70 

(testimony of MAJ Rebecca DiMuro, U.S. Army, Special Victim Prosecutor) (same).

638 Fishman, supra note 636, at 53–54.

639 Transcript of JPP Public Meeting 403 (Oct. 10, 2014) (testimony of Lt Col Brian Thompson, U.S. Air Force, Chief Senior 

Trial Counsel) (arguing also in favor of eliminating “constitutionally required” exception); id. at 197, 221 (testimony of 

Ms. Patricia Powers, Senior Deputy Prosecuting Attorney, Yakima County (Wash.) Prosecuting Attorney’s Office).

640 M.R.E. 513(e)(3).

641 FY15 NDAA, Pub. L. No. 113-291, § 537(4), 128 Stat. 3292 (2014).

642 See Flippin, supra note 568, at 7 (citing Stephen A. Saltzburg, Lee D. Schinasi, and David A. Schlueter, Military Rules of

Evidence Manual 129 (cum. supp. 2001)).

643 A standard of relevancy comports with the reasoning in Klemick and follows the review of at least one recent Service 

appellate court. United States v. Hudgins, No. ACM 38305, 2014 CCA LEXIS 227 (A.F. Ct. Crim. App. Apr. 3, 2014) 

(unpublished decision affirming military judge’s finding that the records sought were not relevant).
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decisions.644 Another presenter said that in her experience, some military judges allow counsel to 

review records in camera along with the judge, which allows counsel to highlight what they believe is 

appropriate, whereas other military judges review the records alone, resulting in what she perceived 

as “somewhat arbitrary” release decisions. She recommended that “[s]ome kind of standard practice” 

should be “articulated in the statute.”645

In a 2007 article, Professor Fishman described one possible standard for disclosure of M.R.E. 513 

evidence to the defense. In his view, “information contained in a prosecution witness’s counseling or 

therapy records is likely to be relevant only to the extent that it undermines or impeaches that witness’s 

testimony. Thus, the appropriate standard should be expressed in that context: information in such 

records should be disclosed to the defense only if, and to the extent, it raises significant doubts upon 

the truthfulness or accuracy of an important government witness’s testimony.”646

While the FY15 NDAA changes to M.R.E. 513 establish a clear burden for the moving party to meet 

in order for the military judge to conduct a review of the M.R.E. 513 evidence, the amendment does 

not provide a standard for military judges to use when determining whether the evidence should be 

produced or admitted. The revisions note only that the military judge must limit the information 

that is released, requiring that “any production or disclosure permitted by the military judge must 

be ‘narrowly tailored’ to the specific records or communications, or the portions thereof that meet 

the requirements for one of the enumerated exceptions to the privilege and are included in the stated 

purpose for which such records or communications are sought.”647

4. Other Issues Relating to M.R.E. 513

a. The “Constitutionally Required” Exception to M.R.E. 513

The “constitutionally required” evidence exception in the current version of M.R.E. 513 closely 

mirrors the provision in M.R.E. 412(b)(1)(C), allowing evidence otherwise excluded in sexual assault 

cases to be produced or admitted by the defense. In the FY15 NDAA, Congress directed that the 

“constitutionally required” exception be removed from M.R.E. 513, effective June 17, 2015.648

A civilian expert on evidentiary privileges told the JPP that “[n]o state rules of evidence that cover 

the psychotherapist-patient privilege specifically include a ‘constitutionally required’ exception.”649

Practitioners told the JPP that litigation over the exception often arises when the defense believes 

evidence favorable to the accused, such as evidence of bias or prior inconsistent statements affecting 

the victim’s credibility, or evidence that the victim was taking medications that might affect his or her 

ability to perceive or recall the incident, is contained in the victim’s mental health records.650

644 See Transcript of JPP Public Meeting 431–32 (Oct. 10, 2014) (testimony of Maj Andrea Hall, U.S. Air Force, Senior 

Defense Counsel).

645 Transcript of JPP Public Meeting 371 (Oct. 10, 2014) (testimony of MAJ Rebecca DiMuro, U.S. Army, Special Victim 

Prosecutor).

646 Fishman, supra note 636, at 52 (footnote omitted).

647 FY15 NDAA, Pub. L. No. 113-291, § 537(5), 128 Stat. 3292 (2014).

648 FY15 NDAA, Pub. L. No. 113-291, § 537(2), 128 Stat. 3292 (2014).

649 Transcript of JPP Public Meeting 215 (Oct. 10, 2014) (testimony of Ms. Jennifer Long, Director, Æquitas).

650 Transcript of JPP Public Meeting 127 (Oct. 10, 2014) (testimony of Col John G. Baker, U.S. Marine Corps, Deputy 

Director, Judge Advocate Division); Transcript of JPP Public Meeting 438–39 (Oct. 10, 2014) (testimony of MAJ Shari 
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

Case law provides little guidance on this exception to M.R.E. 513.651 The two Service courts that 

have addressed it have analyzed the issue in terms of whether the records sought were “material” and 

“relevant” to preparing a defense. They have held that an accused must do more than merely describe 

evidence in terms of credibility, truthfulness, or bias. Instead, he or she must establish “a real and 

direct nexus” between the proffered evidence and a fact or issue in the case.652

Before passage of the FY15 NDAA, some presenters recommended to the JPP that Congress remove 

the “constitutionally required” exception in M.R.E. 513. Witnesses who criticized the exception argued 

that its language seems to make this privilege “different” from others, inviting military defense counsel 

to attempt to breach the privilege and military judges to read too much breadth into it.653 Other 

presenters argued that the exception is unnecessary, because all M.R.E. privileges, by implication, must 

yield to constitutional requirements.654 In any event, two witnesses, citing Supreme Court case law, 

told the JPP that the Constitution does not require disclosure of privileged communications, because 

withholding such communications does not violate a defendant’s Sixth Amendment right to confront 

witnesses or Fifth Amendment right to due process. Pointing to thirteen states with stronger statutes on 

psychotherapist-patient privilege modeled after the attorney-client privilege, these presenters noted that 

those laws have never been overturned on due process grounds.655

While the FY15 NDAA does eliminate the “constitutionally required” exception to M.R.E. 513, it is 

possible that issues may continue to arise if courts recognize that M.R.E. privileges, by implication, 

must yield to constitutional requirements.

b. Strengthening the Military’s Psychotherapist-Patient Privilege

Some presenters advised the JPP that the military’s psychotherapist-patient privilege should be 

strengthened. Specifically, one presenter recommended that exceptions to the privilege should be 

made only if (1) the defense has made substantial showing that the victim is incapacitated and unable 

to recollect or testify truthfully, or (2) the reported sexual assault occurred during the course of the 

victim’s mental health treatment.656 These witnesses said the risk currently perceived by victims that 

their mental health records will be disclosed in court has a chilling effect both on their desire to seek 

Shugart, U.S. Army, Senior Defense Counsel).

651 The Court of Appeals for the Armed Forces has discussed the exception only once, doing so only in the context of the 

procedural mechanics of a judge who abated a case after ordering a civilian third party to produce records for an in 

camera inspection. United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006). 

652 See, e.g., United States v. Hohenstein, No. ACM 37965, 2014 CCA LEXIS 179 (A.F. Ct. Crim. App. Mar. 20, 2014) 

(unpublished opinion); United States v. Wallace, No. NMCCA 201100300, 2012 CCA LEXIS 109 (N-M. Ct. Crim. App. 

Mar. 30, 2012) (unpublished opinion analyzing issue in terms of applicability of M.R.E. 608(c) to M.R.E. 513 evidence).

653 Written Statement of Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas, to JPP 4 (Oct. 10, 2014); Written Statement 

of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and Mr. Ryan Guilds, Counsel, Arnold 

& Porter LLP to JPP 4 n.5 of M.R.E. 513 Analysis (Oct. 24, 2014) (arguing that M.R.E. 513’s uniquely explicit 

“constitutionally required” exception causes military judges to apply “different” standard than they would under M.R.E. 

502, 503, or 504).

654 Transcript of JPP Public Meeting 294, 354 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & Porter 

LLP); Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and Mr. Guilds to 

JPP 4 n.5 of M.R.E. 513 Analysis (Oct. 24, 2014).

655 Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and Mr. Ryan Guilds, 

Counsel, Arnold & Porter LLP to JPP 5 n.7 of M.R.E. 513 Analysis (Oct. 24, 2014) (citing Pennsylvania v. Ritchie, 480 

U.S. 39, 51-53 (1987), and Brady v. Maryland, 373 U.S. 83 (1963)).

656 Transcript of JPP Public Meeting 300–01 (Oct. 10, 2014) (testimony of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP).
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treatment and on their willingness to cooperate with prosecutions.657 Some presenters also noted that 

strengthening the psychotherapist-patient privilege would bring M.R.E. 513 in line with M.R.E. 502 

(attorney-client privilege), M.R.E. 503 (clergy privilege), and 504 (spousal privilege), as well as with 

the psychotherapist-patient privileges recognized in thirteen civilian jurisdictions.658

Other presenters testifying before the JPP said that the military’s psychotherapist-patient privilege 

should remain qualified.659 Multiple senior defense counsel told the JPP that victims’ mental health 

records occasionally contain evidence that is necessary to present the accused’s defense and is otherwise 

not available.660

5. JPP Analysis and Recommendations on M.R.E. 513 Issues

The JPP considered the pending changes to M.R.E. 513 that were mandated by the FY15 NDAA and 

will take effect in June 2015. The JPP agreed that expanding the M.R.E. 513 privilege and eliminating 

the “constitutionally required” exception are positive steps toward protecting a victim’s privacy 

interests. 

The JPP considered laws and Service regulations that apply during an investigation of an alleged 

sexual assault offense. They generally keep the existence and content of mental health records 

private and confidential with a few exceptions, including exceptions for law enforcement purposes. 

Some presenters expressed concern to the JPP that mental health records were too easily located and 

obtained by criminal investigators, who may then turn over those records to prosecutors or defense 

counsel unnecessarily, without authorization or appropriate legal oversight by a legal advisor for the 

medical facility or by a military judge. The JPP’s review makes clear that Service guidance and common 

practice among investigators is not uniform across DoD.

The JPP deliberated about whether these Service regulations and guidance regarding the release of 

mental health records for law enforcement purposes should be revised or standardized. Numerous 

presenters told the JPP that mental health records are sometimes obtained by criminal investigators and 

prosecutors in advance of hearings or proceedings and that this practice may chill victims’ willingness 

to participate in sexual assault prosecutions. The JPP believes that the release of mental health records, 

or even the acknowledgment that mental health records exist, pierces the psychotherapist-patient 

privilege and constitutes a serious invasion of privacy. The Secretary of Defense should issue specific, 

uniform guidance to ensure that mental health records are neither sought from a medical treatment 

facility by investigators or military justice practitioners nor acknowledged or released by medical 

657 Written Statement of Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas to JPP 5 (Oct. 10, 2014); Written Statement of 

Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders to JPP para. 9 (Oct. 10, 2014); Transcript of 

JPP Public Meeting 266-67 (Oct. 10, 2014) (testimony of Ms. Petersen); Attachment to Written Statement of Ms. Petersen 

to JPP paras. 9, 10 (Oct. 10, 2014) (describing unnamed civilian victim’s experience during Article 32 investigation); 

Written Statement of Ms. Petersen and Mr. Ryan Guilds, Counsel, Arnold & Porter LLP, to JPP 6 of M.R.E. 513 Analysis 

(Oct. 24, 2014).

658 Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and Mr. Ryan Guilds, 

Counsel, Arnold & Porter LLP, to JPP 2 of M.R.E. 513 Analysis (Oct. 24, 2014) (footnote omitted); see also National 

Crime Victim Law Institute (NCVLI), Refusing Discovery Requests of Privileged Materials Pretrial in Criminal Cases, 

Violence Against Women Bull., at 3 (June 2011) (arguing against pretrial disclosure of victims’ records, citing lack of 

constitutional requirement that defendants receive pretrial access to victims’ privileged materials).

659 See, e.g., Transcript of JPP Public Meeting 242–43 (Oct. 10, 2014) (testimony of Prof. Clifford S. Fishman, Catholic 

University School of Law); id. at 432–33 (testimony of Maj Andrea Hall, U.S. Air Force, Senior Defense Counsel).

660 See, e.g., Transcript of JPP Public Meeting 438–39 (Oct. 10, 2014) (testimony of MAJ Shari Shugart, U.S. Army, Senior 

Defense Counsel); id. at 443–44 (testimony of Maj Matthew Powers, U.S. Marine Corps, Senior Defense Counsel).
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V. VICTIM PRIVACY ISSUES IN MILITARY SEXUAL ASSAULT CASES – PRIVILEGES AND PROTECTIONS

treatment facility personnel until a military judge or Article 32 hearing officer has ordered their 

production. The JPP intends to continue to assess this issue in order to provide additional comments 

and recommendations.

The JPP also considered the modifications in the FY15 NDAA that will change how military judges 

review motions to produce mental health records at trial. Current practice, which may produce 

records more readily for in camera inspection, may also deter victim participation. Changes to M.R.E. 

513 in the FY15 NDAA will require military judges to follow clear standards at initial hearings and 

permit judges to conduct in camera reviews of records only after a moving party has met its burden 

at the initial hearing and an examination of the information is necessary to rule on the production or 

admissibility of protecting records or communications.661 The modification incorporates requirements 

and procedural standards that are similar to those described in United States v. Klemick to ensure that 

in camera review is necessary. In addition, the FY15 NDAA removed the “constitutionally required” 

exception from M.R.E. 513. The JPP will continue to monitor how M.R.E. 513 matters are addressed 

by military judges in light of the FY15 NDAA changes.

661 FY15 NDAA, Pub. L. No. 113-291, § 537(4), 128 Stat. 3292 (2014).
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125

APPENDIX A: Judicial Proceedings Panel 

Authorizing Statutes

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013

SECTION 576. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM 

CODE OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL 

ASSAULT CASES.

(a) INDEPENDENT REVIEWS AND ASSESSMENTS REQUIRED.—

(2) JUDICIAL PROCEEDINGS SINCE FISCAL YEAR 2012 AMENDMENTS.— 

The Secretary of Defense shall establish a panel to conduct an independent review and 

assessment of judicial proceedings conducted under the Uniform Code of Military Justice 

involving adult sexual assault and related offenses since the amendments made to the Uniform 

Code of Military Justice by section 541 of the National Defense Authorization Act for Fiscal 

Year 2012 (Public Law 112–81; 125

Stat. 1404) for the purpose of developing recommendations for improvements to such 

proceedings.

(b) ESTABLISHMENT OF INDEPENDENT REVIEW PANELS. 

(1) COMPOSITION.

(B)JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall be 

appointed by the Secretary of Defense and consist of five members, two of whom must have 

also served on the panel established under subsection (a)(1).

(2) QUALIFICATIONS.—The members of each panel shall be selected from among private United 

States citizens who collectively possess expertise in military law, civilian law, the investigation, 

prosecution, and adjudication of sexual assaults in State and Federal criminal courts, victim 

advocacy, treatment for victims, military justice, the organization and missions of the Armed 

Forces, and offenses relating to rape, sexual assault, and other adult sexual assault crimes.

(3) CHAIR.—The chair of each panel shall be appointed by the Secretary of Defense from among 

the members of the panel.

(4) PERIOD OF APPOINTMENT; VACANCIES.—Members shall be appointed for the life of the 

panel. Any vacancy in a panel shall be filled in the same manner as the original appointment.

(5) DEADLINE FOR APPOINTMENTS.—

(B)JUDICIAL PROCEEDINGS PANEL.—All original appointments to the panel required by 

subsection (a)(2) shall be made before the termination date of the panel established under 

subsection (a)(1), but no later than 30 days before the termination date.
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(6) MEETINGS.—A panel shall meet at the call of the chair.

(7) FIRST MEETING.—The chair shall call the first meeting of a panel not later than 60 days after 

the date of the appointment of all the members of the panel.

(c) REPORTS AND DURATION.—

(2) JUDICIAL PROCEEDINGS PANEL.—

(A)FIRST REPORT.—The panel established under subsection (a)(2) shall submit a first report, 

including any proposals for legislative or administrative changes the panel considers 

appropriate, to the Secretary of Defense and the Committees on Armed Services of the 

Senate and the House of Representatives not later than 180 days after the first meeting of 

the panel.

(B) SUBSEQUENT REPORTS.—The panel established under subsection (a)(2) shall submit 

subsequent reports during fiscal years 2014 through 2017.

(C) TERMINATION.—The panel established under subsection (a)(2) shall terminate on 

September 30, 2017.

(d) DUTIES OF PANELS.—

(2) JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall perform 

the following duties:

(A)Assess and make recommendations for improvements in the implementation of the reforms 

to the offenses relating to rape, sexual assault, and other sexual misconduct under the 

Uniform Code of Military Justice that were enacted by section 541 of the National Defense 

Authorization Act for Fiscal Year 2012 (Public Law 112– 81; 125 Stat. 1404).

(B) Review and evaluate current trends in response to sexual assault crimes whether by courtsmartial proceedings, non-judicial punishment and administrative actions, including the 

number of punishments by type, and the consistency and appropriateness of the decisions, 

punishments, and administrative actions based on the facts of individual cases.

(C)Identify any trends in punishments rendered by military courts, including general, special, 

and summary courts-martial, in response to sexual assault, including the number of 

punishments by type, and the consistency of the punishments, based on the facts of each 

case compared with the punishments rendered by Federal and State criminal courts.

(D)Review and evaluate court-martial convictions for sexual assault in the year covered by 

the most-recent report required by subsection (c)(2) and the number and description of 

instances when punishments were reduced or set aside upon appeal and the instances in 

which the defendant appealed following a plea agreement, if such information is available.

(E) Review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in a proceeding under section 832 of title 10, United States Code (article 32 of 

the Uniform Code of Military Justice),and any instances in which prior sexual conduct was 

determined to be inadmissible.
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APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

(F) Review and assess those instances in which evidence of prior sexual conduct of the alleged 

victim was introduced by the defense in a court-martial and what impact that evidence had 

on the case.

(G)Building on the data compiled as a result of paragraph (1)(D), assess the trends in the 

training and experience levels of military defense and trial counsel in adult sexual assault 

cases and the impact of those trends in the prosecution and adjudication of such cases.

(H)Monitor trends in the development, utilization and effectiveness of the special victims 

capabilities required by section 573 of this Act.

(I) Monitor the implementation of the April 20, 2012, Secretary of Defense policy 

memorandum regarding withholding initial disposition authority under the Uniform Code 

of Military Justice in certain sexual assault cases.

(J) Consider such other matters and materials as the panel considers appropriate for purposes 

of the reports.

(3) UTILIZATION OF OTHER STUDIES.—In conducting reviews and assessments and preparing 

reports, a panel may review, and incorporate as appropriate, the data and findings of applicable 

ongoing and completed studies.

(e) AUTHORITY OF PANELS.—

(1) HEARINGS.—A panel may hold such hearings, sit and act at such times and places, take such 

testimony, and receive such evidence as the panel considers appropriate to carry out its duties 

under this section.

(2) INFORMATION FROM FEDERAL AGENCIES.—Upon request by the chair of a panel, a 

department or agency of the Federal Government shall provide information that the panel 

considers necessary to carry out its duties under this section.

(f) PERSONNEL MATTERS.—

(1) PAY OF MEMBERS.—Members of a panel shall serve without pay by reason of their work on 

the panel.

(2) TRAVEL EXPENSES.—The members of a panel shall be allowed travel expenses, including per 

diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I 

of chapter 57 of title 5, United States Code, while away from their homes or regular places of 

business in the performance or services for the panel.

(3) STAFFING AND RESOURCES.—The Secretary of Defense shall provide staffing and resources 

to support the panels, except that the Secretary may not assign primary responsibility for such 

staffing and resources to the Sexual Assault Prevention and Response Office.
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NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

SEC. 1731. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM CODE 

OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL ASSAULT 

CASES.

(b) ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.—

(1) ADDITIONAL ASSESSMENTS SPECIFIED.—The independent panel established by 

the Secretary of Defense under subsection (a)(2) of section 576 of the National Defense 

Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758), known as the 

“judicial proceedings panel”, shall conduct the following:

(A)An assessment of the likely consequences of amending the definition of rape and sexual 

assault under section 920 of title 10, United States Code (article 120 of the Uniform Code 

of Military Justice), to expressly cover a situation in which a person subject to chapter 47 

of title 10, United States Code (the Uniform Code of Military Justice), commits a sexual act 

upon another person by abusing one’s position in the chain of command of the other person 

to gain access to or coerce the other person.

(B) An assessment of the implementation and effect of section 1044e of title 10, United States 

Code, as added by section 1716, and make such recommendations for modification of such 

section 1044e as the judicial proceedings panel considers appropriate.

(C)An assessment of the implementation and effect of the mandatory minimum sentences 

established by section 856(b) of title 10, United States Code (article 56(b) of the Uniform 

Code of Military Justice), as added by section 1705, and the appropriateness of statutorily 

mandated minimum sentencing provisions for additional offenses under chapter 47 of title 

10, United States Code (the Uniform Code of Military Justice).

(D)An assessment of the adequacy of the provision of compensation and restitution for victims 

of offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military 

Justice), and develop recommendations on expanding such compensation and restitution, 

including consideration of the options as follows:

(i) Providing the forfeited wages of incarcerated members of the Armed Forces to victims of 

offenses as compensation.

(ii) Including bodily harm among the injuries meriting compensation for redress under 

section 939 of title 10, United States Code (article 139 of the Uniform Code of Military 

Justice).

(iii) Requiring restitution by members of the Armed Forces to victims of their offenses upon 

the direction of a court-martial.

(2) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

assessments required by paragraph (1) in one of the reports required by subsection (c)(2)(B) of 

section 576 of the National Defense Authorization Act for Fiscal Year 2013.
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APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015

SEC. 545. ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.

(a) ADDITIONAL DUTIES IMPOSED.—The independent panel established by the Secretary of 

Defense under section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 

(Public Law 112–239; 126 Stat. 1758), known as the ‘‘judicial proceedings panel’’, shall perform 

the following additional duties:

(1) Conduct a review and assessment regarding the impact of the use of any mental health records 

of the victim of an offense under chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), by the accused during the preliminary hearing conducted under section 

832 of such title (article 32 of the Uniform Code of Military Justice), and during court-martial 

proceedings, as compared to the use of similar records in civilian criminal legal proceedings.

(2) Conduct a review and assessment regarding the establishment of a privilege under the Military 

Rules of Evidence against the disclosure of communications between—

(A)users of and personnel staffing the Department of Defense Safe Helpline; and

(B) users of and personnel staffing of the 26 Department of Defense Safe Help Room.

(b) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

reviews and assessments conducted under subsection (a) in one of the reports required by section 

576(c)(2)(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 

126 Stat. 1760).

SEC. 546. DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

(f) DUE DATE FOR ANNUAL REPORT OF JUDICIAL PROCEEDINGS PANEL – Section 576(c)(2)

(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 

1760) is amended by inserting “annually” thereafter” after “reports”.
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131

APPENDIX B: Judicial Proceedings Panel 

Members

HONORABLE ELIZABETH HOLTZMAN – CHAIR

Ms. Holtzman is counsel with the law firm Herrick, Feinstein LLP. Ms. Holtzman served for eight years as 

a U.S. representative (D-NY, 1973–81). While in office, she authored the Rape Privacy Act. She then served 

for eight years as District Attorney of Kings County, New York (Brooklyn), the fourth-largest DA’s office in 

the country, where she helped change rape laws, improve standards and methods for prosecution, and develop 

programs to train police and medical personnel. In 1989 Ms. Holtzman became the only woman ever elected 

Comptroller of New York City. Ms. Holtzman graduated from Radcliffe College, magna cum laude, and 

received her law degree from Harvard Law School.

HONORABLE BARBARA S. JONES, U.S. DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF NEW YORK (RETIRED) 

Judge Jones is a partner at the law firm Zuckerman Spaeder LLP. She served as a judge in the U.S. 

District Court for the Southern District of New York for sixteen years, and heard a wide range of cases 

relating to accounting and securities fraud, antitrust, fraud and corruption involving city contracts 

and federal loan programs, labor racketeering, and terrorism. Before being nominated to the bench in 

1995, Judge Jones was the Chief Assistant to Robert M. Morgenthau, then the District Attorney of 

New York County (Manhattan). In that role she supervised community affairs, public information, 

and oversaw the work of the Homicide Investigation Unit. In addition to her judicial service, she 

spent more than two decades as a prosecutor. Judge Jones was a special attorney of the United States 

Department of Justice (DOJ) Organized Crime & Racketeering, Criminal Division, and the Manhattan 

Strike Force Against Organized Crime and Racketeering. Previously, Judge Jones served as an Assistant 

U.S. Attorney, as chief of the General Crimes Unit, and as chief of the Organized Crime Unit in the 

Southern District of New York.

MR. VICTOR STONE

Victor Stone represents crime victims at the Maryland Crime Victims Resource Center, Inc. Previously, 

Mr. Stone served as Special Counsel at the United States Department of Justice. He spent forty years 

with the Department of Justice in numerous positions, including as Chief Counsel, FBI Foreign 

Terrorist Task Force, and as Assistant U.S. Attorney in Oregon and the District of Columbia. He 

has experience working on victim and prisoners’ rights, serving on committees that resulted in the 

enactment of the Crime Victims’ Rights Act and updates to the ABA Standards for Prisoner Rights. 

After graduating from Harvard Law School, he clerked on the United States Court of Appeals for the 

Ninth Circuit.
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

PROFESSOR THOMAS W. TAYLOR

Tom Taylor teaches graduate courses at Duke University’s Sanford School of Public Policy. Previously, 

he served as a decorated and distinguished Army officer, civil servant, and member of the Senior 

Executive Service. During a twenty-seven-year career in the Pentagon, as, he advised seven secretaries 

and seven Chiefs of Staff of the Army, and as the senior leader of the Army legal community he worked 

on a wide variety of operational, personnel, and intelligence issues. He graduated with high honors 

from Guilford College, Greensboro, N.C., and with honors from the University of North Carolina at 

Chapel Hill law school, where he was a Morehead Fellow, a member of the law review, and a member 

of the Order of the Coif. 

VICE ADMIRAL PATRICIA A. TRACEY, U.S. NAVY (RETIRED) 

Pat Tracey is the Vice President of Homeland Security and Defense for HP Enterprise Services, U.S. 

Public Sector, developing dynamic strategies and providing support to various government agencies, 

including the U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of 

State, and U.S. Department of Defense. In 2006, after thirty-four years in the U.S. Navy, she retired as 

the first female vice admiral. As Chief of the Navy’s $5 billion global education and training enterprise, 

she led a successful revolution in training technology to improve the quality, access, and effectiveness 

of Navy training while lowering its cost. Admiral Tracey graduated from the College of New Rochelle 

and the Naval Postgraduate School, with distinction, and completed a fellowship with the Chief of 

Naval Operations’ Strategic Studies Group.
133

APPENDIX C: Staff Members and 

Designated Federal Officials

JUDICIAL PROCEEDINGS 

PANEL STAFF

Lieutenant Colonel Kyle Green, 

U.S. Air Force, Staff Director

Lieutenant Colonel Kelly McGovern, 

U.S. Army, Deputy Staff Director

Mr. Dale Trexler, Chief of Staff

Mr. Roger Capretta, Supervising Paralegal

Ms. Julie Carson, Legislative Analyst

Ms. Janice Chayt, Investigator

Ms. Alice Falk, Editor

Lieutenant Colonel Glen Hines, 

U.S. Marine Corps, Attorney

Ms. Laurel Prucha Moran, Graphic Designer

Mr. Douglas Nelson, Attorney

Mr. Matt Osborn, Attorney

Ms. Meghan Peters, Attorney

Ms. Stayce Rozell, Senior Paralegal

Ms. Meghan Tokash, Attorney

Ms. Sharon Zahn, Senior Paralegal

DESIGNATED FEDERAL OFFICIALS

Ms. Maria Fried, 

Designated Federal Official

Mr. William Sprance, 

Alternate Designated Federal Official

Major Jacqueline M. Stingl, 

Alternate Designated Federal Official

Mr. Dwight Sullivan, 

Alternate Designated Federal Official
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
135

APPENDIX D: Presenters at the 

JPP Public Meetings

MEETING PRESENTERS

August 7, 2014

Public Meeting of 

the JPP 

at the 

The George 

Washington 

University 

Law School, 

Washington, D.C.

• Mr. Dwight Sullivan, Office of the General Counsel, 

Department of Defense

• Ms. Carol E. Tracy, Women’s Law Project

• Mr. John Wilkinson, Æquitas

• Ms. Charlene Whitman, Æquitas

• Professor Stephen Schulhofer, NYU School of Law, 

American Law Institute (by phone)

• Captain Christian Reismeier, U.S. Navy, Chief Judge, Department of 

the Navy

• Mr. William Cassara, Attorney-at-Law, Augusta, Georgia

• Colonel (Ret) Timothy Grammel, U.S. Army, former Trial Judiciary 

Circuit Judge

• Colonel Gary M. Jackson, U.S. Air Force, Staff Judge Advocate, 

Headquarters Air Force Global Strike Command 
136

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

MEETING PRESENTERS

September 19, 2014

Public Meeting 

of the JPP 

at the 

Holiday Inn 

Arlington at Ballston

• Ms. Teresa Scalzo, Highly Qualified Expert, 

U.S. Navy Trial Counsel Assistance Program 

• Mr. E. J. O’Brien, Highly Qualified Expert, 

U.S. Army Trial Defense Services 

• Mr. Ronald White, former Highly Qualified Expert for 

the U.S. Army Trial Defense Services 

• Professor Rachel VanLandingham, Southwestern Law School 

• Professor Victor Hansen, New England School of Law, Boston 

• Lieutenant Colonel Alex Pickands, U.S. Army, 

Trial Counsel Assistance Program 

• Lieutenant Colonel Chris Thielemann, U.S. Marine Corps, 

Regional Trial Counsel 

• Lieutenant Commander Ryan Stormer, U.S. Navy, 

Trial Counsel Assistance Program 

• Major Mark Rosenow, U.S. Air Force, Special Victims Unit, 

Chief of Policy and Coordination 

• Colonel Terri Zimmermann, U.S. Marine Corps, Officer-in-Charge 

(Reserve), Defense Services Organization 

• Lieutenant Colonel Julie Pitvorec, U.S. Air Force, 

Chief Senior Defense Counsel 

• Commander Jason Jones, U.S. Navy, Defense Service Office

• Major Frank Kostik, U.S. Army, Senior Defense Counsel 

• Congresswoman Lois Frankel (D-22nd FL) 

• Congresswoman Jackie Speier (D-14th CA) 

• Ms. Elisha D. Morrow, former U.S. Coast Guard Sailor 

• Captain Steven Andersen, U.S. Coast Guard, Commanding Officer, 

Legal Services Command 

• Colonel Polly Kenny, U.S. Air Force, Staff Judge Advocate, 

Air Education and Training Command 

• Lieutenant Colonel James Varley, U.S. Army, 

Government Appellate Division 

• Lieutenant Colonel Michael Sayegh, U.S. Marine Corps, 

Staff Judge Advocate, Training Command

• Major Melanie Mann, U.S. Marine Corps, Military Justice Officer

• Colonel Michael Lewis, U.S. Air Force, Chief, Military Justice Division 

• Colonel John Baker, U.S. Marine Corps, Deputy Director, 

Judge Advocate Division, Military Justice & Community Development 

• Captain Robert Crow, U.S. Navy, Director, Criminal Law Division 

(OJAG Code 20) 

• Lieutenant Colonel John Kiel, U.S. Army, Criminal Law Division, 

Office of the Judge Advocate General 

• Captain (Ret) Stephen McCleary, U.S. Coast Guard, 

former Chief of Military Justice
137

APPENDIX D: PRESENTERS AT THE JPP PUBLIC MEETINGS

MEETING PRESENTERS

October 10, 2014

Public Meeting 

of the JPP 

at the 

Holiday Inn 

Arlington at 

Ballston

• Mr. William Barto, U.S. Army, Director, Advocacy Training and Programs, 

Criminal Law Division, Office of the Judge Advocate General

• Colonel John Baker, U.S. Marine Corps, Deputy Director, Judge Advocate 

Division, Military Justice & Community Development

• Ms. Jennifer Long, Director, Æquitas

• Ms. Patricia Powers, Senior Deputy Prosecuting Attorney, Yakima County 

(WA) Prosecuting Attorney’s Office

• Ms. Laurie Rose Kepros, Director of Sexual Litigation, Colorado Office of 

the State Public Defender

• Professor Clifford Fishman, Catholic University School of Law

• Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders

• Mr. Ryan Guilds, Counsel, Arnold & Porter LLP

• Mr. Greg Jacob, Policy Director, Service Women’s Action Network

• Lieutenant Colonel Brian Thompson, U.S. Air Force, Chief Senior Trial 

Counsel, Government Trial and Appellate Counsel Division

• Commander Jonathan Stephens, U.S. Navy, Senior Trial Counsel, Region 

Legal Service Office Mid-Atlantic

• Major Rebecca DiMuro, U.S. Army, Special Victim Prosecutor

• Major Pete Houtz, U.S. Marine Corps, Regional Trial Counsel

• Commander Steve Reyes, U.S. Navy, Director, Defense Counsel Assistance 

Program

• Major Andrea Hall, U.S. Air Force, Senior Defense Counsel

• Major Shari Shugart, U.S. Army, Senior Defense Counsel

• Major Matthew Powers, U.S. Marine Corps, Senior Defense Counsel
138

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

MEETING PRESENTERS

November 14, 2014 

Public Meeting of the 

JPP 

at the 

Holiday Inn 

Arlington at Ballston

• Lieutenant Colonel Ryan Oakley, Deputy Director, Legal Policy, 

Office of the Under Secretary of Defense for Personnel and Readiness

• Ms. Meg Garvin, Executive Director, National Crime Victims’ Law Institute

• Mr. Michael Andrews, Project Director and Managing Attorney, 

District of Columbia Crime Victims’ Resource Center

• Colonel James Robert McKee, U.S. Army, Program Manager, 

Special Victims’ Counsel Program

• Colonel Carol K. Joyce, U.S. Marine Corps, Officer in Charge, 

Victims Legal Counsel Organization

• Captain Karen Fischer-Anderson, U.S. Navy, Chief of Staff, 

Victims’ Legal Counsel

• Lieutenant Colonel Andrea M. deCamara, U.S. Air Force, Chief, 

Special Victims’ Counsel Division

• Commander Ted Fowles, U.S. Coast Guard, Chief, 

Office of Special Victims’ Counsel

• Commander Colleen Shook, U.S. Navy, Officer in Charge, 

Victims’ Legal Program Mid-Atlantic

• Lieutenant Commander Kismet Wunder, U.S. Coast Guard, 

Special Victims’ Counsel

• Major Marc R. Tilney, U.S. Marine Corps, Regional Victims’ Legal Counsel

• Captain Jessie Sommer, U.S. Army, Chief, 82nd Airborne Division Legal 

Assistance Office and Division Special Victims’ Counsel

• Captain Aaron Kirk, U.S. Air Force, Special Victims’ Counsel, 

Air Force Legal Operations Agency

• Mr. Victor Stone, JPP member

• Mr. James W. Boerner, Special Agent, 

Army Criminal Investigative Command

• Mr. Mark Walker, Special Agent, IOC to the SAPR Office, 

Air Force Office of Special Investigations

• Mr. Mike DeFamio, Supervisory Special Agent, 

U.S. Navy Criminal Investigative Service

• Major William Babor, U.S. Air Force, Senior Defense Counsel

• Lieutenant Commander Nate Gross, U.S. Navy, Senior Defense Counsel

• Major Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel

• Captain Sarah Robbins, U.S. Army, Trial Defense Counsel

• Lieutenant Colonel Scott Hutmacher, U.S. Army, Special Victim Prosecutor

• Lieutenant Commander Philip J. Hamon, U.S. Navy, Senior Trial Counsel, 

Region Legal Service Office

• Major Douglas C. Hatch, U.S. Marine Corps, 

Senior Complex Trial Counsel, Legal Support Section West

• Captain Brent Jones, U.S. Air Force, Senior Trial Counsel, 

Air Force Legal Operations Agency 

• Lieutenant Jeffrey C. Barnum, U.S. Coast Guard, Trial Counsel
139

APPENDIX D: PRESENTERS AT THE JPP PUBLIC MEETINGS

MEETING PRESENTERS

December 12, 2014

Public Meeting 

of the JPP 

at the 

Holiday Inn 

Arlington at Ballston

• Colonel (Ret) Don Christensen, U.S. Air Force, 

President, Protect Our Defenders

• Ms. Phylista Dudzinski, U.S. Air Force Sexual Assault 

Response Coordinator

• Ms. Simone Hall, U.S. Coast Guard Sexual Assault Response Coordinator

• Ms. Marie A. Brodie, U.S. Marine Corps Installation 

Sexual Assault Response Coordinator

• Ms. Gloria M. Arteaga, U.S. Naval Sexual Assault Response Coordinator

• Sergeant First Class Bridgett Joseph, U.S. Army 

Sexual Assault Response Coordinator

• Lieutenant Commander Kelley Stevens, U.S. Coast Guard, 

Special Victims’ Counsel and Petty Officer N.S.

• Major William D. Ivins III, U.S. Marine Corps, 

Regional Victims’ Legal Counsel-West and Ms. J.B.

• Captain Christopher Mangels, U.S. Air Force,

Special Victims’ Counsel and Ms. R.S.

• Lieutenant Kathryn DeAngelo, U.S. Navy, 

Victims’ Legal Counsel and Airman V.T.

• Captain Brian E. Stransky, U.S. Army, 

Operational Law Attorney and Specialist A.S.

• Vice Admiral Nanette M. DeRenzi, U.S. Navy, Judge Advocate General

• Lieutenant General Flora D. Darpino, U.S. Army, 

The Judge Advocate General

• Lieutenant General Christopher F. Burne, U.S. Air Force, 

The Judge Advocate General

• Rear Admiral Steven D. Poulin, U.S. Coast Guard, 

Judge Advocate General and Chief Counsel

• Colonel John Baker, U.S. Marine Corps, Deputy Director, 

Judge Advocate Division, Military Justice & Community Development
140

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

MEETING PRESENTERS

January 16, 2015

Public Meeting 

of the JPP 

at the 

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C.

• Panel Deliberations (no speakers)

MEETING PRESENTERS

January 30, 2015

Public Meeting of 

the JPP at 

One Liberty Center, 

Arlington, VA

• Panel Deliberations (no speakers)
141

APPENDIX E: Acronyms and 

Abbreviations

ACCA Army Court of Criminal Appeals

AFOSI Air Force Office of Special 

Investigations 

CAAF Court of Appeals for the Armed 

Forces

C.F.R. Code of Federal Regulations

CNLSC Commander, Naval Legal Service 

Command 

CVRA Crime Victims’ Rights Act 

DC defense counsel

DoD Department of Defense

EO Executive Order

FOIA Freedom of Information Act

F.R.E. Federal Rules of Evidence

FY fiscal year

HIPAA Health Insurance Portability and 

Accountability Act of 1996 

IO investigating officers 

JAG Judge Advocate General

JPP Judicial Proceedings Panel

JSC Joint Service Committee 

MCIO military criminal investigative 

organization

MCM Manual for Courts-Martial

M.R.E. Military Rules of Evidence

NDAA National Defense Authorization Act

PHI protected health information 

R.C.M. Rules for Courts-Martial

ROI report of investigation 

RSP Responses Systems to Adult Sexual 

Assault Crimes Panel 

SAPRO Sexual Assault Prevention and 

Response Office 

SARC sexual assault response coordinator 

SES Survivor Experience Survey

SJA staff judge advocate 

SVC special victims’ counsel

TC trial counsel

TJAG The Judge Advocate General 

TJAGLCS The Judge Advocate General’s 

Legal Center and School 

UCMJ Uniform Code of Military Justice

U.S.C. United States Code

VA victim advocate 

VIS Victim Impact Survey 

VLC victims’ legal counsel

VLCO Victims’ Legal Counsel 

Organization 

VLCP Victims’ Legal Counsel Program 

VWAP Victim and Witness Assistance 

Program 
142

INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL
143

APPENDIX F: Sources Consulted

1. U.S. CONSTITUTION

2. LEGISLATIVE SOURCES

a. Enacted Statutes

18 U.S.C. § 2242 (Sexual Abuse)

All Writs Act, 28 U.S.C. §§ 1651-1659

Crime Victims’ Rights Act, 18 U.S.C. § 3771

Federal Advisory Committee Act, 5 U.S.C. App. 2

Federal Rule of Evidence (F.R.E.) 412 (Sex-Offense Cases: The Victim’s Sexual Behavior or 

Predisposition) and Advisory Committee Notes, 28 U.S.C.

Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191 (1996)

Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 164, Subpart E (2000)

National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811 (2004)

National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3134 (2006)

National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011)

National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 126 Stat. 1632 (2013)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292 (2014)

Privacy Protection for Rape Victims Act of 1978, Pub. L. No. 95-540, 92 Stat. 2046 (1978) (codified 

as Fed. R. Evid. 412)

Uniform Code of Military Justice, 10 U.S.C. §§ 801-946

b. Proposed Statutes

H.R. 430, 113th Cong. (2013), Protect Our Military Trainees Act

3. JUDICIAL DECISIONS

a. U.S. Supreme Court

Jaffee v. Redmond, 518 U.S. 1 (1996)

Rock v. Arkansas, 483 U.S. 44 (1987)

Delaware v. Van Arsdall, 475 U.S. 673 (1986)
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

Chambers v. Mississippi, 410 U.S. 284 (1973)

Washington v. Texas, 388 U.S. 14 (1967)

b. U.S. Court of Appeals

In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555 (2d Cir. 2005)

Kenna v. U.S. Dist. Court, 435 F.3d 1011 (9th Cir. 2006)

c. U.S. Court of Appeals for the Armed Forces

L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013)

United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004)

United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011)

United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011)

United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006)

United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005)

United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011)

United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010)

United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011)

d. U.S. Air Force Court of Criminal Appeals

United States v. Hudgins, No. ACM 38305, 2014 CCA LEXIS 227 (A.F. Ct. Crim. App. Apr. 3, 2014) 

(unpublished)

United States v. Hohenstein, No. ACM 37965, 2014 CCA LEXIS 179 (A.F. Ct. Crim. App. Mar. 20, 

2014) (unpublished)

e. U.S. Army Court of Criminal Appeals

SPC “H.C.” v. Bridges, Misc. No. 20140793 (A. Ct. Crim. App. Dec. 1, 2014) (unpublished)

“S.C.” v. Schubert, Misc. No. 20140813 (A. Ct. Crim. App. Oct. 31, 2014) (unpublished)

SSG “C.C.” v. Lippert, Misc. No. 20140779 (A. Ct. Crim. App. Oct. 16, 2014) (unpublished)

SPC “Y.G.” v. Bridges, Misc. No. 20140905 (A. Ct. Crim. App. Dec. 1, 2014) (unpublished)

United States v. Schloff, Misc. No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (unpublished)

f. U.S. Navy-Marine Corps Court of Criminal Appeals

United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App. 2006)

United States v. Wallace, No. NMCCA 201100300, 2012 CCA LEXIS 109 (N-M. Ct. Crim. App. 

Mar. 30, 2012) (unpublished)

g. State Court

State v. Balles, 47 N.J. 331 (1966)
145

APPENDIX F: SOURCES CONSULTED

4. RULES AND REGULATIONS

a. Executive Orders

Exec. Order No. 12,198, 45 Fed. Reg. 16,932 (Mar. 14, 1980)

Exec. Order No. 13,140, 64 Fed. Reg. 55,115 (Oct. 7, 1999)

Exec. Order No. 13,447, 72 Fed Reg. 56,179 (Sept. 28, 2007)

Exec. Order No. 13,643, 78 Fed Reg. 29,559 (May 21, 2013)

Exec. Order No. 13,669, 79 Fed Reg. 34,999 (June 18, 2014)

Federal Rules of Criminal Procedure

Federal Rules of Evidence

Manual for Courts-Martial, United States (1951), available at http://www.loc.gov/rr/frd/ 

Military_Law/pdf/manual-1951.pdf 

Manual for Courts-Martial, United States (1969), available at http://www.loc.gov/rr/frd/ 

Military_Law/pdf/manual-1969.pdf 

Manual for Courts-Martial, United States (2008), available at http://www.loc.gov/rr/frd/ 

Military_Law/pdf/MCM-2008.pdf 

Manual for Courts-Martial, United States (2012), available at http://www.loc.gov/rr/frd/ 

Military_Law/pdf/MCM-2012.pdf 

b. Proposed Amendments

U.S. Dep’t of Def., Joint Service Committee on Military Justice (JSC), Proposed Amendments to

the Manual for Courts-Martial, United States, 79 Fed. Reg. 59,938 (proposed Oct. 3, 2014), 

available at http://www.gpo.gov/fdsys/pkg/FR-2014-10-03/pdf/2014-23546.pdf

c. Department of Defense

DoD Directive 1030.01, Victim and Witness Assistance (Apr. 23, 2007), available at 

http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf

DoD Instruction 1030.2, Victim and Witness Assistance Procedures (June 4, 2004), available at

http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf 

DoD Form 2910, Victim Reporting Preference Statement (June 2014), available at 

http://www.dtic.mil/whs/directives/forms/dd/ddforms2500-2999.htm

DoD Instruction 5505.18, Investigation of Adult Sexual Assault in the Department of Defense 

(May 1, 2013), available at http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf 

DoD Instruction 6025.18, Privacy of Individually Identifiable Health Information in DoD Health

Care Programs (Dec. 2, 2009), available at http://www.dtic.mil/whs/directives/corres/pdf/ 

602518p.pdf 

DoD Directive 6025.18-R, Health Information Privacy Regulation (Jan. 24, 2003), available at

http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf
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DoD Instruction 6490.08, Command Notification Requirements to Dispel Stigma in Providing

Mental Health Care to Service Members (Aug. 17. 2011), available at http://www.dtic.mil/whs/

directives/corres/pdf/649008p.pdf 

DoD Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures

(Feb. 12, 2014), available at http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf

d. Services

U.S. Dep’t of Air Force, Instruction 36-2909, Professional and Unprofessional Relationships (June 

19, 2014), available at http://static.e-publishing.af.mil/production/1/af_ja/publication/afi36-2909/

afi36-2909.pdf 

U.S. Dep’t of Air Force, Instruction 51-201, Administration of Military Justice (Sept. 25, 2014), 

available at http://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf

U.S. Dep’t of Army, Regulation 27-3, Army Legal Assistance Program (Sept. 13, 2011), available at

http://www.apd.army.mil/pdffiles/r27_3.pdf 

U.S. Dep’t of Army, Regulation 40-66, Medical Record Administration and Healthcare

Documentation (Jan. 4, 2010), available at http://armypubs.army.mil/epubs/pdf/r40_66.pdf 

U.S. Dep’t of Army, Regulation 195-2, Criminal Investigation Activities (June 9, 2014), available at

http://www.apd.army.mil/pdffiles/r195_2.pdf

U.S. Dep’t of Army, Regulation 600-20, Army Command Policy (Nov. 6, 2014), available at http://

www.apd.army.mil/pdffiles/r600_20.pdf

U.S. Dep’t of Navy, Sec’y of Navy Instruction 5300.26D, Department of the Navy (DON) Policy

on Sexual Harassment (Jan. 3, 2006), available at http://doni.daps.dla.mil/Directives/05000%20

General%20Management%20Security%20and%20Safety%20Services/05-300%20

Manpower%20Personnel%20Support/5300.26D.pdf

U.S. Dep’t of Navy, Navy-Marine Corps Trial Judiciary, Europe, Africa, and Southwest Asia Judicial

Circuit Rules of Practice (Apr. 3, 2014), available at http://www.jag.navy.mil/courts/documents/

EURAFSWA_CIRCUIT_RULES_OF_PRACTICE.pdf

U.S. Marine Corps, Order 100.9A, Sexual Harassment (May 30, 2006), available at http://www.

marines.mil/Portals/59/Publications/MCO%201000.9A.pdf 

U.S. Marine Corps, Military Justice Branch, Practice Advisory 4-14, Disclosure of Information to

Crime Victims (Nov. 5, 2014), available at http://www.hqmc.marines.mil/Portals/135/Docs/JAM/

Practice%20Advisory%204-14%20-%20Release%20of%20Information%20to%20Victims.pdf

U.S. Coast Guard, Commandant Instr. M1000.6A , Personnel Manual (May 14, 2002), available at 

http://isddc.dot.gov/OLPFiles/USCG/010564.pdf

U.S. Coast Guard, Judge Advocate General Memorandum 5810, Disclosure of Information to Crime 

Victims (Oct. 28, 2014), available at http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_

Enclosure_Q14_USCG.pdf
147

APPENDIX F: SOURCES CONSULTED

5. MEETINGS AND HEARINGS

a. Public Meetings of the Judicial Proceedings Panel

Transcript of JPP Public Meeting (Aug. 7, 2014)

Transcript of JPP Public Meeting (Sept. 19, 2014)

Transcript of JPP Public Meeting (Oct. 10, 2014)

Transcript of JPP Public Meeting (Nov. 14, 2014)

Transcript of JPP Public Meeting (Dec. 12, 2014)

Victor Stone, “U.S. Army Training Course, TJAGLCS, Charlottesville, VA, August 18-22, 2014: Trip 

Report of Mr. Victor Stone, Judicial Proceedings Panel Member,” available at http://jpp.whs.mil/

Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20141114/13_ArmySVC_Course_TripReport_

Stone.pdf

b. Public Meetings of the Response Systems Panel

Transcript of RSP Public Meeting (May 5, 2014) 

6. MILITARY POLICY AND GUIDANCE

a. Department of Defense

Memorandum from the Secretary of Defense on Implementation of the Recommendations of 

the Response Systems to Adult Sexual Assault Crimes Panel (Dec. 15, 2014), available at

http://jpp.whs.mil/Public/docs/03_Topic-Areas/01-General_Information/05_DoDResponse_

RSPRecommendations_20141215.pdf

Memorandum from the Secretary of Defense on Prevention and Reporting of Sexual Assault and Other 

Misconduct in Initial Military Training (Sept. 25, 2012), available at http://www.sapr.mil/public/

docs/news/Prevention_and_Report_of_Sexual_Assault.pdf 

Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response 

(Aug. 14, 2013), available at http://www.sapr.mil/public/docs/news/SECDEF_Memo_SAPR_

Initiatives_20130814.pdf 

b. Services

Special Victims’ Counsel Requests for Air Force Records Under the Privacy Act and Freedom of 

Information Act, Op. JAG, Air Force, No. 2014/3 (July 1, 2014), available at http://jpp.whs.mil/

Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20150116/34_OpJAGAF_SVC_ReqforRecords_

PA_FOIA_20140701.pdf

U.S. Dep’t of Air Force, Instruction 44-109, Mental Health, Confidentiality, and Military Law

Memorandum (July 17, 2014), available at http://static.e-publishing.af.mil/production/1/af_sg/

publication/afi44-109/afi44-109.pdf 

U.S. Dep’t of Air Force, Instruction 51-504, Legal Assistance, Notary, and Preventive Law Programs

(Jan. 24, 2013), available at http://static.e-publishing.af.mil/production/1/af_a3_5/publication/

afi51-504/afi51-504.pdf 
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

U.S. Dep’t of Air Force, Special Victims’ Counsel Charter (July 1, 2013), available at http://

responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_

Related/04_USAF_SpecialVictimsCounsel_Charter.pdf 

U.S. Dep’t of Air Force, Special Victims’ Counsel Rules of Practice and Procedure (July 1, 2013), 

available at http://jpp.whs.mil/Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q19c_USAF.pdf 

The Army Judge Advocate General, Memorandum for Judge Advocate Legal Services Personnel 

on Office of the Judge Advocate General Policy Memorandum #14-01, Special Victim Counsel 

(Nov. 1, 2013), reprinted in DoD Response to RSP Request for Information 4, at 200204-

07, available at http://responsesystemspanel.whs.mil/Public/docs/Background_Materials/

Requests_For_Information/RFI_Response_Q4.pdf 

The Army Judge Advocate General, Memorandum for Judge Advocate Legal Services Personnel on 

Disclosure of Information to Crime Victims #14-09 (Oct. 1, 2014), available at http://jpp.whs.mil/

Public/docs/RFI/Set_1/Encl13-25/RFI_Enclosure_Q14_USA.pdf

U.S. Dep’t of Army, Pamphlet 27-9, Legal Services: Military Judges’ Benchbook (Sept. 10, 2014), 

available at http://www.apd.army.mil/pdffiles/p27_9.pdf

U.S. Dep’t of Army, Special Victim Counsel Handbook (Nov. 1, 2013), available at http://

responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_

Related/03a_USA_SpecialVictimsConsel_Handbook.pdf

U.S. Army Trial Judiciary, Rules of Practice Before Army Courts-Martial (Nov. 1, 2013), 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/04-SVC_VictimAccess/20150116/37_

ArmyJudiciary_RulesofCourt_20131101.pdf

Marine Corps Order 100.9A, Sexual Harassment (May 30, 2006), available at http://www.marines.

mil/Portals/59/Publications/MCO%201000.9A.pdf 

Marine Corps Order P5800.16A, Manual for Legal Administration (Feb. 26, 2014), available at

http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/159508/mcop580016a-ch7-manual-for-legal-administration-legadminman.aspx

U.S. Dep’t of Navy, SECNAV Instruction 5300.26D, Department of the Navy (DON) Policy on

Sexual Harassment (Jan. 3, 2006), available at http://doni.daps.dla.mil/Directives/05000%20

General%20Management%20Security%20and%20Safety%20Services/05-300%20

Manpower%20Personnel%20Support/5300.26D.pdf 

U.S. Dep’t of Navy, JAG Instruction 5801.2B, Navy Legal Assistance Program (Feb. 15, 2013), 

available at http://www.jag.navy.mil/library/instructions/5801_2b.pdf 
149

APPENDIX F: SOURCES CONSULTED

7. REPORTS

a. DoD and DoD Agencies

Defense Manpower Data Center (DMDC), Defense Research, Surveys, and Statistics Center (RSSC), 

2014 Survivor Experience Survey: Report on Preliminary Results: Fiscal Year 2014, Quarter

4 (Oct. 2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_

Report_to_POTUS_Annex_2_DMDC.pdf 

Defense Manpower Data Center (DMDC), 2012 Workplace and Gender Relations Survey of

Active Duty Members (Mar. 2013), available at http://www.sapr.mil/public/docs/research/2012_

workplace_and_gender_relations_survey_of_active_duty_members-survey_note_and_briefing.pdf 

Report of Panel to Review Sexual Misconduct Allegations at the U.S. Air Force Academy (2003), 

available at http://www.defense.gov/news/Sep2003/d20030922usafareport.pdf

U.S. Dep’t of Def., Report on Implementation of Section 1716 of the National Defense

Authorization Act for Fiscal Year 2014 (Apr. 2014), available at http://responsesystemspanel.

whs.mil/index.php/home/materials 

U.S. Dep’t of Def., Report to the President of the United States on Sexual Assault Prevention and

Response (Nov. 25, 2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/

FY14_DoD_Report_to_POTUS_SAPRO_Report.pdf

U.S. Dep’t of Def., Report on Protections for Prospective Members and New Members of

the Armed Forces During Entry-Level Processing and Training (May 2014), available 

at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140919/29_

ReportOnProtectionsForProspectiveMembers_DoD_2014.pdf

b. Response Systems Panel Reports and Assessments

Report of the Victim Services Subcommittee to the Response Systems to Adult Sexual Assault Crimes

Panel (May 2014), reprinted in Annex available at http://responsesystemspanel.whs.mil/

Report of the Response Systems to Adult Sexual Assault Crimes Panel (June 2014), available at http://

responsesystemspanel.whs.mil/

c. Other Reports

124 Cong. Rec. 34,912-13 (Oct. 1978) (statement of Rep. Elizabeth Holtzman)

American Law Institute, Model Penal Code: Sexual Assault and Related Offenses: Tentative

Draft No. 1 (2014), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-

Article_120/20140807/03_ProposedRevision_MPC213_Excerpt_201405.pdf

Charles Doyle, Cong. Research Serv., Crime Victims’ Rights Act; A Summary and Legal Analysis of

18 U.S.C. § 3771 (Apr. 24, 2012), available at https://www.fas.org/sgp/crs/misc/RL33679.pdf

Report of the Sex Crimes and The UCMJ Subcommittee: A Report for the Joint Service Committee

on Military Justice (Feb. 2005), available at http://www.defenselink.mil/dodgc/php/docs/

subcommittee_reportMarkHarvey1-13-05.doc
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8. DOD’S AND SERVICES’ RESPONSES TO JPP REQUESTS FOR INFORMATION 

NUMBERS 1-62

9. BOOKS

Black’s Law Dictionary (10th ed. 2014)

Paul DerOhannesian II, Sexual Assault Trials, Vol. I (Matthew Bender 3d ed. 2006)

Stephen A. Saltzburg, Lee D. Schinasi, and David A. Schlueter, Military Rules of Evidence Manual, 

Vol. II (cum. sup. 2001)

10. JOURNAL ARTICLES

Michelle J. Anderson, From Chastity Requirement to Sexuality and License: Sexual Consent and a 

New Rape Shield Law, 70 Geo. Wash. L. Rev. 51 (2002)

Michelle J. Anderson, Time to Reform Rape Shield Statutes, 19-SUM Crim. Just. 14 (2004), 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/03-Victim_Privacy/20141010/06_

TimeToReformRapreShieldLaws_Anderson_2004.pdf 

Andrea R. Barter, SJC Revisits and Revises the Fresh Complaint Rule, Law. J., Mass. Bar Ass’n 

(Nov. 2005), available at http://www.massbar.org/publications/lawyers-journal/2005/november/

sjc-revisits-and-revises-the 

Jim Clark, Analysis of Crimes and Defenses 2012 UCMJ Article 120, effective 28 June 2012, 

Emerging Issues 6423 (2012), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-

Article_120/20140807/07_Art120_UCMJ_Crimes_Defenses_Analysis_Clark_2012.pdf

Clifford S. Fishman, Defense Access to a Prosecution Witness’s Psychotherapy or Counseling Records, 

65 Or. L. Rev. 1 (2007)

Stacy E. Flippin, Military Rule of Evidence (MRE) 513: A Shield to Protect Communications of 

Victims and Witnesses to Psychotherapists, 2003-SEP Army Law., at 1

Major Timothy Grammel, Justice and Discipline: Recent Developments in Substantive Criminal Law, 

Army Law., Apr. 2001, at 64

Major Jennifer Knies, Two Steps Forward, One Step Back: Why the New UCMJ’s Rape Law Missed 

the Mark, and How an Affirmative Consent Statute Will Put it Back on Target, Army Law., Aug. 

2007, at 1

Colonel R. Peter Masterton, Colonel David Robertson, and Colonel Wendy P. Daknis, Annual Review 

of Developments in Instructions, Army Law., Dec. 2013, at 4

National Crime Victim Law Institute (NCVLI), Refusing Discovery Requests of Privileged Materials 

Pretrial in Criminal Cases, Violence Against Women Bull. (June 2011), available at https://law.

lclark.edu/live/files/11779-refusing-discovery-requests-of-privileged

Brigadier General (Ret.) Jack Nevin and Lieutenant Joshua R. Lorenz, Neither a Model of Clarity nor 

a Model Statute: An Analysis of the History, Challenges, and Suggested Changes to the “New” 

Article 120, 67 A.F. L. Rev. 269 (2011)

Major Shane R. Reeves, Time to Fine-Tune Military Rule of Evidence 412, 196 Mil. L. Rev. 47 (2008)
151

APPENDIX F: SOURCES CONSULTED

Major Mark D. Sameit, When a Convicted Rape is Not Really Rape: The Past, Present, and Future 

Ability of Article 120 Convictions to Withstand Legal and Factual Sufficiency Reviews, 216 Mil. 

L. Rev. 77 (2013)

Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of 

Military Justice (UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 Ohio St. J. 

Crim. L. 439 (Spring 2014)

Major Paul. M. Schimpf, Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to 

Communications between a Victim and Victim-Advocate in the Military, 185 Mil. L. Rev 149 (Fall 

2005)

Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. Rev. 441 (1996)

Ronald W. White, “The Redemptive Role of ‘Justification or Excuse’ in Article 120(a) (2011): We 

Don’t Need A New Statute; We Need New Implementation” (undated; provided to JPP Sept. 12, 

2014), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140919/26_

TheRedemptiveRole_White.pdf

11. LETTERS AND E-MAILS

Written Submission of Lt Col Andrea M. deCamara, U.S. Air Force, Chief, Special Victims’ Counsel 

Division, to JPP (provided after public meeting held Nov. 14, 2014)

Written Submission of Rep. Lois Frankel, “Red Line Version of Article 120 with Frankel Proposal” 

(Sept. 19, 2014)

Written Statement of Mr. Ryan Guilds, Counsel, Arnold & Porter LLP, to JPP (Oct. 10, 2014)

Email from Col Gary J. Jackson, U.S. Air Force, to JPP (Aug. 11, 2014)

Letter from Mr. Paul S. Koffsky, Department of Defense Deputy General Counsel, Personnel and 

Health Policy, to JPP (Oct. 16, 2014)

Written Statement of Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas, to JPP (Oct. 10, 2014)

Written Statement of Mr. Edward J. O’Brien, The Article 120 Implementation Challenge: Avoiding 

Unintended Consequences and Unjust Outcomes, to JPP (Sept. 19, 2014)

Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders to JPP 

(Oct. 10, 2014)

Written Statement of Ms. Miranda Petersen, Program & Policy Director, Protect Our Defenders, and 

Ryan Guilds, Counsel Arnold & Porter LLP, to JPP (Oct. 24, 2014)

Letter from Protect Our Defenders (Sept. 25, 2013)

Press Release of Protect Our Defenders (July 28, 2014)

Written Submission of Protect Our Defenders to JPP (provided after public meeting held Dec. 12, 

2014)

Written Statement of CDR Stephen C. Reyes, U.S. Navy, Director, Defense Counsel Assistance 

Program, to JPP (Oct. 24, 2014)

Letter from Professor Stephen J. Schulhofer, NYU School of Law, American Law Institute, to JPP 

(Aug. 8, 2014)
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INITIAL REPORT OF THE JUDICIAL PROCEEDINGS PANEL

12. NEWS ARTICLES

Anna Mulrine, “Sexual Assault in the Military: Can Special Counsels for Victims Help?” Christian

Sci. Monitor (July 17, 2013), available at http://www.csmonitor.com/USA/Military/2013/0717/

Sexual-assault-in-the-military-Can-special-counsels-for-victims-help

Jakob Rodgers, “Air Force Program Puts Lawyer in Victim’s Corner,” [Colo. Springs] Gazette (Mar. 

25, 2013) available at http://www.military.com/daily-news/2013/03/25/air-force-program-putslawyer-in-victims-corner.html

Reps. Jackie Speier, Susan Davis, and Loretta Sanchez, Code of Military Justice needs to be updated for 

21st century, San Antonio Express-News (Oct. 8, 2012), available at http://www.mysanantonio.

com/opinion/commentary/article/Code-of-Military-Justice-needs-to-be-updated-for-3929510.php

Jennifer Steinhauer, Navy Hearing in Rape Case Raises Alarm, N.Y. Times, (Sept. 20, 2013), available 

at http://www.nytimes.com/2013/09/21/us/intrusive-grilling-in-rape-case-raises-alarm-on-militaryhearings.html?pagewanted=all&_r=0

Jeffery Toobin, The Consent Defense, Rape Laws May Have Changed, But Questions About The 

Accuser Are Often The Same, The New Yorker (Sept. 1, 2003), at 43, available at http://jpp.

whs.mil/Public/docs/03_Topic-Areas/03-Victim_Privacy/20150116/26_TheConsentDefense_

NewYorkerMag_Toobin_20030901.pdf 

Alan S. Zagier, Fort Leonard Wood Drill Sergeant Found Guilty of Sex Assaults, Army Times (Sept. 

24, 2014), available at http://archive.armytimes.com/article/20140924/NEWS06/309240058/

Fort-Leonard-Wood-drill-sergeant-found-guilty-sex-assaults