Congress has progressively expanded victims’ rights in the military justice system through a series of legislative reforms since 2013. Article 6b of the UCMJ now guarantees crime victims the right to be notified of proceedings, to be present at public hearings, to be heard at sentencing and parole hearings, to confer with trial counsel, and to receive restitution. The Special Victims’ Counsel (SVC) program, known as Victims’ Legal Counsel (VLC) in the Navy and Marine Corps, provides victims with their own independent licensed attorney at no cost. SVCs represent the victim’s interests throughout the military justice process, from investigation through trial and appeal, and can appear in court to assert the victim’s rights independently of both the prosecution and the defense. The creation of the OSTC in December 2023 further changed the victim’s experience by transferring prosecution decisions for covered offenses from the victim’s chain of command to independent military lawyers, reducing the risk that command relationships influence case outcomes.
The Legal Framework for Victims’ Rights in Military Justice
Article 6b: Crime Victims’ Rights Under the UCMJ
Article 6b of the UCMJ, codified at 10 U.S.C. Section 806b, establishes a statutory bill of rights for victims of offenses under the UCMJ. These rights include the right to be reasonably protected from the accused, the right to reasonable, accurate, and timely notice of any public proceeding involving the offense, the right not to be excluded from any such public proceeding (unless the military judge determines that testimony by the victim would be materially altered by hearing other testimony), the right to be reasonably heard at sentencing and parole proceedings, the right to confer with the trial counsel in the case, and the right to restitution as provided in law.
These rights are enforceable through petition to the Court of Criminal Appeals under Article 6b(e), which gives victims a mechanism to challenge violations. If the victim’s rights are denied, the victim (through the SVC or personally) may petition the military appellate court for a writ of mandamus, and the court must decide the petition within 72 hours. This enforcement mechanism, added by the FY2014 NDAA, gave victims’ rights genuine teeth by providing judicial recourse.
Legislative Evolution of Victims’ Rights Since 2013
The military victims’ rights framework was built through successive NDAAs. The FY2014 NDAA created the SVC program, established Article 6b, and provided victims the right to attend Article 32 preliminary hearings. The FY2015 NDAA expanded the victim’s right to be heard, particularly at pretrial confinement hearings. The FY2020 NDAA enhanced notification requirements and broadened the definition of “victim” for purposes of Article 6b. The FY2022 NDAA, which established the OSTC, further expanded victim notification rights by requiring that victims be informed of the OSTC’s disposition decisions and the reasons for those decisions.
Each legislative cycle has added protections, creating a cumulative framework that is now significantly more robust than what existed before 2013, when victims had few formal rights in the military justice process and were largely dependent on trial counsel to represent their interests as an adjunct to the prosecution.
The Special Victims’ Counsel / Victims’ Legal Counsel Program
Origin and Legislative History
The SVC program was established by the FY2014 NDAA in response to congressional concern that victims of sexual assault and other serious offenses lacked independent legal representation in the military justice process. Before the SVC program, victims’ legal interests were represented by trial counsel (the military prosecutor), creating an inherent tension: trial counsel’s primary obligation is to the United States, not to the individual victim, and the interests of the prosecution and the victim do not always align.
The program was initially limited to victims of sexual assault but has since been expanded to cover victims of any offense under the UCMJ, though eligibility criteria and prioritization vary by service branch. The Army’s SVC program, the Air Force’s SVC program, and the Navy and Marine Corps’ Victims’ Legal Counsel (VLC) program each operate under their respective service regulations but share the same statutory foundation.
Who Qualifies for SVC/VLC Representation
Eligibility for SVC/VLC representation varies by service branch but generally includes active-duty servicemembers, dependents of active-duty members, and in some cases, retirees and former servicemembers who were victimized during their service. The victim need not have made a formal report of the offense to qualify for SVC representation, and the SVC can advise the victim on reporting options before any report is filed.
Priority for SVC assignment is generally given to victims of sexual assault, domestic violence, and other violent offenses, but the program is not limited to these categories. Victims of any offense under the UCMJ may request SVC representation, subject to availability.
Scope of Representation and Attorney-Client Relationship
The SVC represents the victim, not the government and not the accused. The attorney-client relationship between the SVC and the victim carries the same privileges and obligations as any attorney-client relationship, including the duty of confidentiality, the duty of competent representation, and the duty to follow the client’s lawful directives.
The SVC’s scope of representation includes advising the victim on rights under Article 6b and other applicable law, representing the victim at Article 32 preliminary hearings, filing motions on the victim’s behalf (including motions to assert privileges such as MRE 513 and MRE 514), appearing at trial to assert the victim’s rights, advising the victim on the impact of the military justice process, and assisting with transitional services and protective orders.
How SVC Interacts with Trial Counsel and Defense Counsel
The SVC operates independently of both the prosecution and the defense. While the SVC and trial counsel often work toward complementary goals, they are not on the same “team.” The SVC may oppose the prosecution’s strategy if it conflicts with the victim’s interests. For example, if the prosecution seeks a plea agreement that the victim believes is inadequate, the SVC can advise the victim on the right to be heard regarding the agreement and can present the victim’s views to the military judge.
The SVC may also interact with defense counsel, though typically in an adversarial posture. If the defense seeks access to the victim’s mental health records, therapy records, or other privileged communications, the SVC opposes the motion on the victim’s behalf. If the defense seeks to introduce evidence of the victim’s sexual behavior under MRE 412 (the military rape shield rule), the SVC represents the victim’s privacy interests in the closed hearing required by that rule.
Victims’ Rights at Each Stage of the Court-Martial Process
During Investigation and Reporting
The victim has the right to be treated with fairness and respect for the victim’s dignity and privacy. During the investigation phase, the SVC advises the victim on the reporting options available, the implications of each option, and the investigation process. The SVC can accompany the victim during interviews with investigators and can advise the victim on which questions must be answered and which are beyond the scope of the investigation.
At the Article 32 Preliminary Hearing
Victims have the right to attend the Article 32 preliminary hearing and to be represented by the SVC. The victim may not be compelled to testify at the preliminary hearing, and if the victim chooses not to testify, the preliminary hearing officer may consider prior sworn statements or other evidence in lieu of live testimony. If the victim does testify, the SVC may object to questions that invade the victim’s privacy, are beyond the scope of the hearing, or violate applicable privileges.
During Trial
At trial, the victim has the right to be present in the courtroom, even if the victim is also a witness. This right is subject to the military judge’s authority to exclude witnesses to prevent testimony from being materially altered. The SVC may be present in the courtroom, may object to questions directed at the victim that violate privileges or the rape shield rule, and may make arguments to the military judge on the victim’s behalf regarding the assertion of rights.
At Sentencing
Under the 2024 MCM reforms, sentencing is now conducted by the military judge alone in all non-capital cases. The victim has the right to be reasonably heard at sentencing, which is exercised through a victim impact statement. The victim may present the statement personally, through the SVC, or in writing. The military judge must consider the victim’s statement as part of the sentencing determination. The SVC assists the victim in preparing the impact statement and may present additional evidence relevant to the victim’s perspective.
During Post-Trial and Appellate Review
The victim’s rights continue beyond the verdict and sentence. The victim has the right to be notified of the outcome of the trial, the sentence, and any post-trial actions by the convening authority. Under recent amendments, the victim also has the right to be notified of any post-trial motions, filings, or hearings that may address findings, unsealing of victim information, or actions that could result in the accused’s release.
During appellate review, the victim has the right to be notified of the status of the appeal, to submit matters to the appellate court, and to be informed of the appellate court’s decision. If the appellate court sets aside a conviction or orders a new trial, the victim must be notified and may again exercise the full range of rights at any subsequent proceeding.
Restricted vs. Unrestricted Reporting: The General Framework
How Each Reporting Option Works Across Offense Categories
The restricted and unrestricted reporting system was originally designed for sexual assault cases but has been extended to other offense categories. The fundamental choice is between confidential access to support services (restricted reporting) and the initiation of a criminal investigation (unrestricted reporting).
A restricted report allows the victim to confidentially disclose the offense to specified personnel (typically a Sexual Assault Response Coordinator, a SARC, victim advocate, or healthcare provider) and receive medical treatment, counseling, and other support services without triggering a criminal investigation or notification to the command. The details of the restricted report are maintained in a confidential file and are not disclosed to law enforcement or the command unless the victim later decides to convert the report.
An unrestricted report initiates the full criminal investigation process. The report is made to law enforcement (CID, NCIS, AFOSI), the command, or other authorized recipients. The command is notified, an investigation is initiated, and the report enters the military justice process. The victim receives the same support services available under a restricted report, plus the additional services associated with active case participation.
Converting from Restricted to Unrestricted
A victim who initially files a restricted report may convert to unrestricted reporting at any time. The conversion is irreversible: once the report is converted to unrestricted, the investigation process begins and the report cannot be returned to restricted status. The SVC advises victims on the implications of conversion and the timing considerations involved.
Confidentiality Protections and Limitations
The confidentiality of a restricted report is protected by DoD policy and, in the case of communications with healthcare providers, by MRE 513 (psychotherapist-patient privilege) and HIPAA. However, there are exceptions that may require disclosure of a restricted report: when the victim consents to disclosure, when disclosure is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person, when the information is required for fitness-for-duty or disability determinations, or when ordered by a military judge or competent court.
The Victim’s Preference in Prosecution Forum
While the victim does not have veto power over prosecution decisions, the victim’s preference is a relevant factor in the disposition decision. Article 33 disposition guidance directs convening authorities (and now the OSTC for covered offenses) to consider the victim’s views regarding prosecution. Under the OSTC framework, Special Victim Liaisons maintain communication with victims specifically to ensure that the victim’s perspective is known to the decision-maker.
The victim’s preference may also influence whether a case proceeds as a general court-martial versus a special court-martial, whether a plea agreement is accepted, and which charges are referred to trial. The SVC ensures that the victim’s preferences are communicated to the appropriate decision-maker.
Victim Impact Statements
A victim impact statement is a written or oral statement describing the personal, emotional, financial, and physical impact of the offense on the victim and the victim’s family. Under the 2024 MCM, the military judge must consider the victim impact statement during sentencing. The statement may include a description of the harm suffered, the victim’s reaction to the offense, the effect on the victim’s daily life and relationships, the financial losses incurred, and the victim’s views on an appropriate sentence.
The SVC assists the victim in preparing the impact statement, ensuring that it is compelling, accurate, and within the bounds of permissible sentencing evidence. The defense may not cross-examine the victim on the content of the impact statement, though the defense may present rebuttal evidence.
How the OSTC Changed the Victim’s Role in Prosecution Decisions
The OSTC’s creation represented the most significant structural change in the victim’s relationship to the military justice system. Before the OSTC, the victim’s chain of command made the prosecution decision, creating a structural concern that command relationships, unit readiness considerations, and personal relationships between the commander and the accused could influence the decision to prosecute. The OSTC removes this concern by vesting the prosecution decision in independent military lawyers who have no command relationship with either the accused or the victim.
For victims, the OSTC provides a single, specialized point of contact through the Special Victim Liaison assigned to each OSTC field office. The SVL maintains communication with the victim throughout the case, explains the OSTC’s decisions and reasoning, and connects the victim with support services. This dedicated liaison function is distinct from the SVC’s legal representation and provides a support role that did not exist in the pre-OSTC system.
The OSTC’s independent authority also means that victims are less likely to experience a situation where their commander declines to prosecute a covered offense for reasons unrelated to the strength of the evidence. While the OSTC may still decline to prosecute for evidentiary or legal reasons, the decision is made by prosecutors trained specifically in covered offense litigation rather than by commanders balancing prosecution against operational and personnel considerations.
[XREF: q47 for OSTC structure; here only victim-facing changes]
Frequently Asked Questions
Can a victim refuse to testify at a court-martial even if the prosecution wants them to?
A victim can refuse to testify at an Article 32 preliminary hearing; the victim’s appearance at the preliminary hearing is not compulsory. At trial, however, the government can compel a victim to testify through a subpoena. If the victim refuses to comply with a lawful subpoena, the victim could theoretically face contempt proceedings, though this is extremely rare in practice. The SVC advises the victim on these rights and obligations. In some cases where the victim is unwilling to testify, the prosecution may proceed using other evidence (forensic evidence, prior statements under hearsay exceptions, recordings) or may decide that the case cannot be proven without the victim’s testimony and decline to proceed to trial.
Does the SVC represent the victim during the appellate process after a conviction?
The SVC’s representation continues through the appellate process. The victim has the right to be notified of the appeal, to submit matters to the appellate court, and to be informed of the appellate court’s decision. If the appellate court orders a new trial or sets aside the conviction, the victim must be notified and may exercise the full range of Article 6b rights at any subsequent proceeding. However, the SVC’s primary role during the appellate phase is monitoring and notification rather than active advocacy, because the appellate courts review the legal record and do not take new testimony. If specific victim-related issues arise on appeal (such as the admissibility of evidence obtained under a victim’s privilege), the SVC may file briefs or motions on the victim’s behalf.
Disclaimer
This article is provided for general informational and educational purposes only and does not constitute legal advice. The information presented reflects the state of the law as of the date of publication and may not account for subsequent legislative changes, executive orders, or judicial decisions. Military justice is a complex and rapidly evolving field; the Uniform Code of Military Justice, the Manual for Courts-Martial, and service-specific regulations are subject to frequent amendment. No attorney-client relationship is created by reading this content. Servicemembers facing investigation, charges, or court-martial should consult with a qualified military defense attorney who can evaluate the specific facts and circumstances of their case. Reliance on the general information in this article without individualized legal counsel may result in adverse consequences.
