Victims’ Rights and the Special Victims’ Counsel Program in Military Justice

For most of the twentieth century, a person harmed by a crime in the armed forces had no lawyer of their own inside the case. The trial counsel, the uniformed prosecutor, spoke for the United States, and the victim was treated as a witness whose interests the government would represent as a byproduct of pressing its own. Two changes have largely undone that arrangement. A statutory bill of rights, Article 6b of the Uniform Code of Military Justice, now lists what a victim is entitled to at each stage of a court-martial. And a corps of independent military attorneys, the Special Victims’ Counsel, now represents the victim personally, separate from both the prosecution and the defense. Understanding how those two pieces fit together explains why a victim today can be heard, protected, and even oppose the government in court without ever being a party to the trial.

Article 6b: The Statutory Bill of Rights

Article 6b, codified at 10 U.S.C. 806b, was added by the Fiscal Year 2014 National Defense Authorization Act and is patterned closely on the federal Crime Victims’ Rights Act that governs civilian district courts. Congress put these protections in the Code itself rather than scatter them through regulations, which is why they bind the system as a matter of statute rather than policy. The catalog of rights is the operative part of the article, and each entry corresponds to a concrete moment in a case.

The article guarantees a crime victim the right to be reasonably protected from the accused; the right to reasonable, accurate, and timely notice of public hearings, the preliminary hearing, the court-martial itself, and any proceeding involving release, escape, or post-trial action; the right not to be excluded from a public proceeding unless a military judge finds by clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony; the right to be reasonably heard at any pretrial confinement hearing, at sentencing, and at clemency and parole proceedings; the reasonable right to confer with the counsel representing the government; the right to receive restitution as provided in law; the right to proceedings free from unreasonable delay; the right to timely notice of any plea, separation, or non-prosecution agreement; and the right to be treated with fairness and with respect for the victim’s dignity and privacy.

A term worth pausing on is “victim.” The Fiscal Year 2020 NDAA broadened the definition for Article 6b purposes, and the protections reach any person who suffered direct physical, emotional, or pecuniary harm from an offense under the Code, not only the named complaining witness in a sexual assault. That breadth is easy to miss because the program that enforces these rights grew out of sexual assault reform.

What “Modeled on the Civilian Act” Does and Does Not Mean

Because Article 6b borrows the structure of the civilian Crime Victims’ Rights Act, it is tempting to assume the two enforce identically. They do not. Under the civilian statute, a victim denied a right may seek a writ of mandamus from the court of appeals, and the statute commands that court to decide the application within seventy-two hours. Article 6b contains no such clock. Its enforcement subsection lets a victim petition the service Court of Criminal Appeals for a writ of mandamus when a preliminary hearing ruling or a court-martial ruling violates an enumerated right, and it directs that the petition receive priority to the extent practicable, but it sets no fixed deadline. Anyone reading a seventy-two hour rule into the military system has carried over a figure that belongs to the civilian code.

The practical reach of that writ is also narrower than the full list of rights suggests. It is most often used to challenge rulings touching victim privacy, and it is an interlocutory remedy aimed at specific rulings rather than a general veto over how a case is run. Its value is that a victim no longer depends entirely on the prosecutor to vindicate the protected rights.

The Special Victims’ Counsel: A Lawyer for the Victim

The right to be heard means little without someone to assert it, and that is the role of the Special Victims’ Counsel. The Air Force created the first program in January 2013, and in August 2013 the Secretary of Defense directed every service to stand up an equivalent. Within a year each branch had one. The program carries different names by service. The Army and Air Force call it Special Victims’ Counsel, while the Navy and Marine Corps call it Victims’ Legal Counsel, but the statutory foundation is the same.

The defining feature is independence. An SVC is a licensed military attorney who represents the victim and only the victim, at no cost to the client. This matters because the prosecutor cannot fill that role. The trial counsel’s duty runs to the United States, and the interests of the government and the individual victim do not always align. A victim may want a privilege protected that the prosecution would rather waive to strengthen the case, or may object to a plea agreement the government considers a sound outcome. The SVC exists precisely to give the victim a voice in those moments that is not the prosecutor’s voice.

A full attorney-client relationship attaches, with the ordinary duties of confidentiality, competence, and loyalty to the client’s lawful directions. Eligibility varies by service but generally extends to service members and dependents who are victims, and in some circumstances to others harmed during service. Priority for assignment tends to go to victims of sexual assault, domestic violence, and other violent offenses, reflecting the program’s origins, but representation is not limited to those categories.

How the SVC Operates Across the Case

The clearest way to see the SVC’s function is to follow a case from report to appeal and mark where the counsel acts.

During investigation, the SVC advises on the reporting decision, can sit in on interviews with investigators, and counsels the victim on the scope of questioning. At the Article 32 preliminary hearing the victim has the right to attend and to decline to testify, and the SVC may object to questions that exceed the hearing’s limited purpose or invade a privilege. The preliminary hearing is a probable cause proceeding, not a discovery deposition, which gives the counsel a basis to resist fishing.

The privilege fights are where the independence is most visible. If the defense seeks the victim’s mental health or therapy records, the SVC opposes the motion under Military Rule of Evidence 513, the psychotherapist-patient privilege, which requires the military judge to hold a closed hearing and weigh defined factors before ordering disclosure. If the defense moves to introduce evidence of the victim’s other sexual behavior, Military Rule of Evidence 412, the rape shield rule, the SVC represents the victim’s privacy interest in the closed hearing that rule requires. Communications with a victim advocate are shielded by Military Rule of Evidence 514. In each instance the SVC, not the prosecutor, stands up for the victim’s confidentiality, and a denial of these privacy rulings is the classic trigger for the Article 6b writ.

At trial the victim has the right to be present even while also a witness, subject to the judge’s power to exclude on the clear and convincing standard noted above. At sentencing, which for non-capital offenses committed on or after 27 December 2023 is imposed by the military judge alone, the victim’s right to be heard is exercised through a victim impact statement that may be delivered in person, through the SVC, or in writing, and the judge must consider it.

Where the SVC Ends and Other Roles Begin

Two adjacent functions are easy to confuse with the SVC and are worth separating. The SVC is a lawyer; it is not the same as the Sexual Assault Response Coordinator or victim advocate, who provide support services and accept restricted reports but do not practice law. And the SVC is distinct from the Special Victim Liaison created within the Office of Special Trial Counsel after the 2023 reforms, which removed charging authority over covered offenses, including sexual offenses under Article 120, from the chain of command and gave it to independent prosecutors. The liaison keeps the victim informed of the prosecutor’s decisions and reasons and connects the victim to resources, but it is a communication and support role, not legal representation. A victim may have all three at once: an advocate for support, a liaison inside the prosecutor’s office for information, and an SVC for legal representation.

The victim’s influence on the prosecution decision is real but bounded. A victim may state a preference, including a preference for civilian rather than military prosecution, and that preference must be considered by the disposition authority and the civilian authority notified, but it is not a veto and the decision rests with the prosecuting authority.

Restricted and Unrestricted Reporting

The reporting framework that determines whether a case enters the justice system at all sits alongside these rights. A victim of sexual assault chooses between two options. A restricted report lets the victim disclose confidentially to a Sexual Assault Response Coordinator, a victim advocate, or healthcare personnel, and receive medical care, counseling, and support without notifying command or law enforcement and without starting an investigation. An unrestricted report notifies command, law enforcement, and the Office of Special Trial Counsel, and opens the investigation.

The conversion runs one direction only. A victim who files a restricted report may convert it to unrestricted at any time, documented by signature on DD Form 2910, but a report that is already unrestricted cannot be made restricted again. That irreversibility is the single most important fact for a victim weighing the choice, and it is a point on which an SVC commonly counsels before any report is made.

Frequently Asked Questions

Can a victim be forced to testify at a court-martial?

The two stages differ. A victim cannot be compelled to testify at the Article 32 preliminary hearing; appearance there is not mandatory. At the trial itself the government may compel testimony by subpoena, and a refusal to comply could in theory lead to contempt, though that is rare. Where a victim is unwilling, the prosecution may proceed on other evidence or may decide the case cannot be proven without the testimony and decline to go forward.

Does a victim keep counsel after the trial ends?

Representation continues through appeal, but its character changes. The victim retains rights to notice of the appeal’s status, to submit matters, and to learn the result, and if a conviction is set aside or a retrial ordered, the full range of Article 6b rights revives at any later proceeding. During the appeal the counsel’s work is mostly monitoring and notice, with active filings reserved for issues that directly concern the victim, such as the handling of privileged information.

Sources

• 10 U.S.C. 806b (Article 6b, Rights of the victim of an offense under the UCMJ): https://www.law.cornell.edu/uscode/text/10/806b
• 18 U.S.C. 3771 (Crime Victims’ Rights Act, the civilian model, including the 72-hour mandamus provision): https://www.law.cornell.edu/uscode/text/18/3771
• 32 CFR 103.6 (Sexual Assault Prevention and Response reporting options; restricted and unrestricted reporting; conversion): https://www.law.cornell.edu/cfr/text/32/103.6
• Department of Defense Special Victims’ Counsel / Victims’ Legal Counsel program overview (SAPR): https://www.sapr.mil/svc-vlc

Disclaimer

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.