Air Force sex crimes victims get legal boost -
Published Sunday, July 7, 2013 at 12:30 am / Updated at 6:58 am
Air Force sex crimes victims get legal boost

Many victims of sex crimes complain they feel as if they’ve been raped a second time by a criminal justice system that lays bare their mental health and sexual histories, or even their dress and drinking habits.

That’s especially true in the military, where reporting an assault may bring down the wrath of a service member’s command and get her or him ostracized by peers.

As it deals with a wave of high-profile sex cases, the Air Force has started a pilot program it hopes will give more victims the courage to come forward. The idea?

Give them a lawyer.

This spring, the Air Force retrained and reassigned 24 of its judge advocates — all experienced litigators hand-picked for the job — as special victims’ counsels, or SVCs. That follows on an effort earlier this year, when 60 lawyers were trained to give part-time help.

Their job is to represent and give legal advice to sexual assault victims who are either military service members or military dependents as their assailants’ cases wind through the military justice system. It builds on the military’s victim advocate program, which for years has offered male and female victims nonlegal help with counseling, medical and reporting matters.

Michael O'Brien

“It’s a fundamental shift in the way the Air Force does business,” said Capt. Michael O’Brien, the new special victims’ counsel at Offutt Air Force Base.

In fact, it’s a potentially seismic change for the entire military justice system, adding a third lawyer to a process that, as any fan of “NCIS” or “JAG” knows, is all about prosecution and defense.

And to some lawyers who practice in military courtrooms, this is a jump too far on behalf of victims’ rights.

“The general consensus is it’s a terrible idea,” said Colby Vokey, a former Marine Corps judge advocate who now practices military law with the Dallas law firm Fitzpatrick Hagood Smith & Uhl.

Washington military attorney Eric Montalvo, also a former Marine lawyer, can barely contain his anger over the program.

“We need a check on the stupidity,” he said. “You’re creating a whole set of issues that don’t belong in the courtroom.”

Some of the opposition is rooted in the fear that SVCs will join with prosecutors to gang up on defendants. But some lawyers also believe it could hinder prosecutions.

For example, a victim’s counsel might advise against testifying if that testimony would expose the victim’s own misdeeds, such as underage drinking.

“We don’t need a third person grinding the wheel” in the system, said Montalvo, who co-founded the Federal Practice Group two years ago after retiring from the Marines.

The program’s supporters say many of the people speaking out against the program don’t fully understand it.

“As people understand what our role is, we’re getting a lot of acceptance,” O’Brien said. “When we SVCs do our jobs properly, people appreciate us.”

They say that giving crime victims a voice in the military justice process doesn’t have to harm the accused.

“Enforcing a victim’s rights can only improve the end result,” said Lt. Col. Dawn Hankins, chief of the Special Victims’ Counsel Division. “It’s not a zero-sum game. Just because you enforce someone’s rights doesn’t take away someone else’s.”

For years the military has offered sexual assault victims help from a victim advocate. But the victim advocate typically doesn’t have legal training and may not be authorized to help crime victims deal with some of the legal problems they face.

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Those can be daunting. In court-martial proceedings, pretrial hearings may investigate a victim’s mental health background or sexual history. Victims may also be asked whether they concur with a plea deal offered to a defendant.

“It’s very traumatic, very difficult to get through,” Hankins said. “Many times what happens is the victim gets put on trial.”

Sometimes, lawyers say, it’s in these cases that victims most need legal help. Yet the old system wasn’t set up to give it to them.

“Years ago, when I acted as a victim advocate, our hands were always tied,” said retired Lt. Col. Nancy Paul of Omaha, who went on to serve as a judge advocate and was a military judge at Offutt until 2010. “We could talk to them, we could guide them, but we couldn’t advise.”

Frequently victims will become close to prosecutors, who must work closely with them if they want to secure a conviction. But prosecutors can’t give advice, either.

“You have to say ‘Whoa, whoa, whoa, I’m not your lawyer,’ ” said O’Brien, who was the senior prosecutor at Offutt until his reassignment last month. “There’s certain ethical boundaries that you can’t cross.”

Hankins said the Air Force decided it needed to plug that gap. So far, 351 victims have received SVC assistance.

The early response has been “overwhelmingly positive,” she said, with 95 percent indicating that they are “extremely satisfied” with the help they received and saying they would recommend the program to other sexual assault victims.

“They didn’t feel like they could get through the process without their SVC,” Hankins said.

O’Brien said he first heard about the program last fall and knew right away he wanted to be part of it because of the chance it offered to help people.

“I said ‘This is something I’ve got to do,’ ” he recalled.

O’Brien set up his SVC office across the base from the legal offices and courtroom to emphasize his independence. He is part of a three-member team that includes another attorney and a paralegal, handling cases across the Plains and Rocky Mountain States. In five weeks of work he has acquired 13 clients, at bases from New Mexico to North Dakota.

Because of government travel limits, O’Brien is in contact with them mostly by phone. He said he will join them in person when they must appear in court.

He has put aside his old prosecutorial zeal to get a conviction in order to look out for the victim.

“Sometimes the interests of the victim is ‘Make this go away,’ ” he said.

The SVC program drew favorable comment last month in the halls of Congress. Gen. Mark Welsh, the Air Force chief of staff, told the Senate Armed Services Committee that, five months into the pilot project, he had already decided to continue it.

“The Special Victims Counsel, in my mind, is one of the set of game-changing things that can help us in this area across the spectrum of issues related to sexual assault,” Welsh told the senators. “Right now it’s the only one we have found that is really gaining traction.”

Sens. Patty Murray, D-Wash., and Kelly Ayotte, R-N.H., have introduced the Combating Military Sexual Assault Act of 2013. The centerpiece of the bill is the extension of the SVC program to all the services.

Critics say that only supports their contention that politicians have gotten involved in something they shouldn’t. Adding an extra party to the time-tested military legal system creates more change than it should have to absorb.

“There’s really no purpose for a victim to have an attorney in the court-martial process,” said Vokey, the Dallas military lawyer. “You’re providing (the victim) a lawyer to satisfy Congress. So somebody came up with this harebrained idea.”

The scope of the SVC’s rights already is being litigated. In January, a special victims’ counsel representing an alleged rape victim at Holloman Air Force Base, N.M., asked a court there to send him copies of paperwork connected with the case. The judge refused, ruling that the victim wasn’t actually a party to the court proceedings.

That decision was upheld by an Air Force appellate court and was argued June 11 before the Court of Appeals of the Armed Forces — the highest court in the military justice system. That eventual ruling could determine how much help O’Brien and his colleagues will be allowed to give assault victims.

Whatever the ruling, the military still must deal with a larger issue that isn’t going away: how to bring down the enormous amount of sexual assault that continues in the military.

A Pentagon survey last year answered by more than 22,000 active-duty service members indicated 6.8 percent of women and 1.2 percent of men in the armed forces had been the recipients of unwanted sexual touching during the previous 12 months.

O’Brien realizes that he and his colleagues in the Special Victims’ Counsel Division can do only so much.

“I think it’s a cultural thing. It’s not just the military,” he said. “But the military is taking it on.”

Contact the writer: Steve Liewer    |   402-444-1186

Steve is the military affairs reporter for The World-Herald.

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