Air Force program a rare bright spot in military’s sex assault fight
By NANCY MONTGOMERY | STARS AND STRIPES Published: February 26, 2014
After she was raped, she had to describe the attack time after humiliating time in interviews — with investigators, prosecutors, victim advocates and defense attorneys.
Authorities seized her cell phone and were combing through her life, making inquiries about her mental health records and asking about her sexual history. Investigators were contacting her friends and associates.
No one was telling her anything about the status of the case.
It’s not an unusual scenario for sexual assault victims in the military.
So when one young airman who’d undergone similar treatment and was beginning to despair was told that she could be provided with a lawyer to represent her — not the Air Force, not the command, just her — in a program called the Special Victims’ Counsel, she was skeptical.
“I honestly felt like it would be just one more person for me to bear my soul to for no avail,” the airman later wrote in a letter to the SVC.
But that’s not what happened.
In a military justice system designed to promote good order and discipline, with traditionally few concerns about victims’ rights, her SVC asked her what she wanted. He advised the airman, who is not named according to Stars and Stripes policy and whose identification was in any case redacted in her letter, provided by the Air Force. He guided and fought for her.
“You’ve been strong when I felt weak, capable when I was disarmed, and wise when I was bewildered,” she wrote in the letter after the accused was convicted. “I will be forever grateful.“
Air Force officials say the SVC program, now operating for a year, has been a singular success in aiding victims and restoring confidence in the criminal justice system. Those goals have been elusive in the services, despite nearly a decade of initiatives: victim advocates, sexual assault response coordinators, restricted reporting, more training for investigators and prosecutors.
But SARCs and victims’ advocates are not legally trained, and, for all their victim support, work essentially for the command. Prosecutors, likewise, work for the Air Force. Sympathetic or not, their duty is to prosecute and win cases. Further, they can’t give victims legal advice, such as telling them they don’t have to answer an improper question from a defense attorney.
SVCs, on the other hand, are duty-bound to work for no one but the victim, just as defense attorneys work for the accused.
“I make them feel that they’re not being pushed around by the system, that their rights are being respected,” said Capt. Aaron Kirk, at Lackland Air Force Base, Texas. “I give them back some sense of control.”
Six months after the program was begun as a pilot in January 2013, 392 victims of sexual assault — all are treated as victims, not “alleged” victims — had requested an SVC, after hearing about the program from a victim advocate or through outreach efforts.
In a survey of 27 victims whose cases were concluded, 94 percent said they were extremely satisfied with the advice and support their SVC provided, according of September evaluation of the program.
Victims said they were satisfied with their SVCs even though SVCs were unable to travel to meet with clients in person, working over the phone or in teleconferences and sometimes not until late in the process.
From the report
They were satisfied even though more than half the cases didn’t go to court-martial, and were resolved with administrative actions, non-judicial punishment discharges or no action at all. Of cases that did proceed to court-martial, 18 percent ended in acquittal.
One of Kirk’s clients saw the two airmen she had accused of sexually assaulting her acquitted — and endured a “horrendous” experience, he said: double the usual number of interviews, two Article 32 hearings, proceedings that Congress determined last year needed revision because they were prone to violating federally guaranteed rules protecting privacy rights of sexual-assault victims.
Still, Kirk said his advocacy for her, when he was assigned after the Article 32s, made her feel like she had someone on her side, someone powerful, who stood up for her.
“She said it meant the world to her,” he said. “I just received a call from her mother, just to thank me.”
What victims want
The early statistics and anecdotal evidence helped persuade the Defense Department to mandate that all the services have similar programs up and running by last month. SVC program requirements also were included in this year’s National Defense Authorization Act, part of an expansion of victims’ rights in military law.
As described in a September evaluation report, SVC advocacy took many forms. SVCs persuaded commanders to allow transfers or forgo disciplining victims for violating fraternization rules, had retaliatory negative comments removed from performance reviews, had personnel who violated confidentiality rules removed from cases and retrieved clients’ cell phones from investigators who’d taken them for evidence and refused to return them. They secured clients transfers, even when commanders initially disapproved them and got protective orders.
They argued in motions to prevent disclosure of victims’ journals, mental health records, and sexual histories. And sometimes they persuaded commanders to send a case to court-martial despite an investigating officer’s recommendation to dismiss it.
By last month, the number of victims requesting SVCs had increased by a third, said Col. Dawn Hankins, who heads the program and its 24 SVCs and 10 paralegals at 22 bases worldwide. Hankins said she plans to add five more lawyers this year to keep up with demand.
SVCs have also advocated for investigations to be dropped, or for commanders not to bring charges.
“There’s so much scrutiny and pressure on the military to hold offenders accountable,” Hankins said.
“The reality is there are some victims who don’t want to participate in the process and will never want to participate. Their privacy is more important to them than seeing their offender put in jail.
“Part of our role is to find out what does the victim want, and then to help them get to where they need to be,” she said. “If we can increase victims’ trust and confidence in the system, we hope they’ll be more willing to report and hold more offenders accountable.”
That’s how it worked for one of Capt. Natasha Fitzsimmons’ clients, who wanted no part in the prosecution of an airman accused of assaulting her and another woman.
But prosecutors and the command were understandably intent on having her testify.
Fitzsimmons, an SVC at Joint Base Maguire-Dix-Lakehurst, N.J., asked for a meeting with the convening authority to discuss her client’s wishes. A teleconference was arranged with the lieutenant general.
“He listened to her concerns. He was very respectful and kind,” Fitzsimmons said.
“He ultimately ordered her to appear and to testify,” she said. “But she really felt like her voice was heard at the highest level.”
Groups that advocate for sexual assault victims and have long been severe critics of the military justice system laud the program.
“The Special Victim Counsel program is a huge success,” Nancy Parrish, president of the advocacy group Protect Our Defenders, said in an email. “We praise the Air Force for leading the way by creating, and then defending the program.”
The program faced fierce opposition from defense attorneys who said the presence of SVCs in the process stacked the deck against the accused and violated the constitutional right to a fair trial. Fitzsimmons pointed out that defense lawyers have learned that when a victim wants the charges dropped, “the SVC can be your friend.”
Many commanders, prosecutors and judges greeted the significant change in the system — one with few precedents and few rules in place — with hostility, skepticism or bafflement.
Hearings continued to take place without SVC notification; SVCs were told their schedules could not be accommodated.
Shortly after the program began, an Air Force judge presiding over a rape case ruled that the SVC, who had sought to argue against allowing his client’s sexual and mental health history into evidence, had “no standing” and could not make arguments or speak on the victim’s behalf.
But in July, the military’s highest court overturned that decision.
The Court of Appeals of the Armed Forces decided that “a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel.”
How military judges and others interpret that remains to be seen.
And a remaining issue is how much information about cases — discovery — can and should be provided to SVCs to help them advise clients. Some prosecutors and military judges have been supportive and provided the materials. Other have not. Starting this year, however, SVCs must be provided all the evidence presented at Article 32s.
Resistance to the SVCs has diminished, Hankins and others said, although for the lawyers it can still be uncomfortable.
Capt. Maribel Jarzabek, a Ramstein Air Base SVC whose advocacy for a client criticized a higher-ranking JAG for anti-victim bias — and resulted in the retirement of a lieutenant general — said sometimes she worried about her career.
“I have to keep remembering whom is my client and whose interests I am zealously advocating for everyday: the victim,” she said.