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

Victims of UCMJ offenses have statutory rights under Article 6b (10 U.S.C. § 806b): protection from the accused (see military protective orders and restraining orders), notice of key proceedings, the right to attend and to be heard at specified hearings, to confer with the prosecutor, to be told of plea agreements, and to petition a Court of Criminal Appeals when certain rulings violate those rights. Victims of alleged sex-related offenses who meet the eligibility categories in 10 U.S.C. § 1044e can also receive a Special Victims’ Counsel, a judge advocate or civilian attorney certified for the role, who represents the victim, not the government.

The rights in Article 6b

Article 6b was added by the FY2014 National Defense Authorization Act (Pub. L. 113-66, December 26, 2013). A “victim of an offense under this chapter” is “an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter” (§ 806b(b)); the definition is not limited to sexual offenses.

Right	What it covers	Source
Protection	To be reasonably protected from the accused	§ 806b(a)(1)
Notice	Reasonable, accurate, and timely notice of a public pretrial confinement hearing, the Article 32 preliminary hearing, the court-martial, post-trial motions or hearings that may affect the findings or sentence, unseal the victim's privileged information, or release the accused, public clemency and parole board proceedings, and the accused's release or escape	§ 806b(a)(2)
Attendance	Not to be excluded from those public proceedings unless the military judge or preliminary hearing officer, "after receiving clear and convincing evidence," determines the victim's testimony "would be materially altered" by hearing other testimony	§ 806b(a)(3)
To be heard	At a public pretrial confinement hearing, at sentencing, and at a public clemency and parole board proceeding	§ 806b(a)(4)
Conferring	A reasonable right to confer with government counsel at those proceedings	§ 806b(a)(5)
Restitution	As provided in law	§ 806b(a)(6)
No unreasonable delay	Proceedings free from unreasonable delay	§ 806b(a)(7)
Agreements	Timely notice of any plea agreement, separation-in-lieu-of-trial agreement, or non-prosecution agreement, subject to listed exceptions	§ 806b(a)(8)
Dignity and privacy	Fair treatment with respect for dignity and privacy	§ 806b(a)(9)

For a victim under 18 (who is not a service member), incompetent, incapacitated, or deceased, a guardian, estate representative, family member, or other person the military judge designates may assume these rights, but never the accused (§ 806b(c)). Article 6b does not create a damages claim or limit the discretion to dispose of charges under Articles 30 and 34 (§ 806b(d)).

Defense interviews. When the government names an alleged victim as a witness, defense counsel must request any interview through the Special Victims’ Counsel or other victim’s counsel, and at the victim’s request the interview takes place only with government counsel, victim’s counsel, or a victim advocate present (§ 806b(f)).

Enforcing the rights: mandamus to the Court of Criminal Appeals

If a victim believes that an Article 32 ruling or a court-martial ruling violates rights protected by Article 6b, Article 32, or Military Rules of Evidence 412, 513, 514, or 615, the victim may petition the Court of Criminal Appeals for a writ of mandamus. A victim ordered to sit for a deposition while available to testify at trial may also petition to quash the order. The petition goes directly to the CCA and, to the extent practicable, has “priority over all other proceedings” there; review of the CCA’s decision has priority at the Court of Appeals for the Armed Forces (§ 806b(e)).

The civilian Crime Victims’ Rights Act, by contrast, requires the court of appeals to decide a victim’s mandamus petition “within 72 hours after the petition has been filed,” unless the parties stipulate otherwise with the court’s approval (18 U.S.C. § 3771(d)(3)). Article 6b sets priority but no fixed number of hours.

Special Victims’ Counsel

Who is eligible. Under § 1044e(a), the Secretary concerned designates Special Victims’ Counsel to provide legal assistance to a victim of an alleged sex-related offense, “regardless of whether the report of that offense is restricted or unrestricted”, if the victim is:

eligible for military legal assistance under 10 U.S.C. § 1044;
a reserve component member victimized while on active duty, full-time National Guard duty, or inactive-duty training, or at any time if the offense has a nexus to military service under DoD regulations; or
a DoD civilian employee for whom the Secretary waives the legal-assistance eligibility condition.

What they do. The statute lists the assistance authorized, beginning with legal consultation about any potential criminal liability of the victim connected with the circumstances and the victim’s right to seek military defense services, and consultation about the Victim Witness Assistance Program (§ 1044e(b)). The victim must be told that Special Victims’ Counsel assistance may be declined in whole or in part.

Who serves. A Special Victims’ Counsel must meet the qualifications in 10 U.S.C. § 1044(d)(2) and be certified as competent by the Judge Advocate General of the armed force in which the judge advocate is a member “or by which the civilian attorney is employed” (or, in the Marine Corps, by the Staff Judge Advocate to the Commandant) (§ 1044e(d)(1)).

Why independence matters. Trial counsel represents the United States. A victim’s interests in privacy, in a privilege, or in a plea agreement can differ from the prosecution’s. In the privilege hearings described below, the victim’s counsel speaks for the victim.

Privacy rules in court

M.R.E. 412 (sexual behavior). A party offering evidence of a victim’s other sexual behavior or predisposition must file a written motion and the judge must hold a closed hearing; the victim may attend and be heard, and that right “includes the right to be heard through counsel, including Special Victims’ Counsel”.
M.R.E. 513 (psychotherapist-patient privilege) and M.R.E. 514 (victim advocate-victim privilege) protect confidential communications, subject to the exceptions in each rule.

How these evidence rules fit the trial is explained in how the Military Rules of Evidence operate in courts-martial.

Through the case

Article 32 hearing. “A victim may not be required to testify at the preliminary hearing” (Article 32(d)(3)).
Sentencing. In a noncapital case, a victim may make a sworn statement, an unsworn statement, or both, and may recommend a specific sentence; in a capital case, the right is to make a sworn statement and the statement may not recommend a sentence (R.C.M. 1001(c)). The sentencing process is described in how the sentencing phase of a court-martial proceeds.
Who decides to prosecute. For sex-related and other covered offenses committed after December 27, 2023, a special trial counsel decides on referral, dismissal, and plea agreements (10 U.S.C. § 824a(c)(3)); the victim’s views are part of the process but do not control the decision.

Restricted and unrestricted reporting

The DoD regulation gives service members and adult military dependents who are victims of sexual assault two reporting options (32 C.F.R. § 103.6(a)); civilian employees are covered below:

Unrestricted reporting “triggers an investigation, command notification,” and access to health care and to a Sexual Assault Response Coordinator (SARC) and victim advocate.
Restricted reporting “does not trigger an investigation”; the command learns only that “an alleged sexual assault” occurred, without the victim’s identifying information.

How a restricted report is made. A disclosure and a formal election are two different steps. Under the regulation, only a SARC, a SAPR victim advocate, or health care personnel may accept a restricted report, and health care personnel who receive one must contact a SARC or SAPR victim advocate (32 C.F.R. § 103.6(a)). The election itself is made when the victim signs DD Form 2910, “the form where the reporting option is selected”; a victim who begins a report and leaves without signing it has made no election, and the SARC, victim advocate, or health care provider has no duty to inform investigators or commanders about it (32 C.F.R. § 103.6(a)). A SARC or victim advocate assists with the form, but the victim, not the SARC or advocate, fills it out (32 C.F.R. § 103.6(h)).

DoD civilian employees. The regulation limits DoD civilian employees to unrestricted reporting (32 C.F.R. § 103.6(a)), but DoD policy has since changed: an Army article reports that, effective July 19, 2024, eligibility for restricted reporting was expanded to DoD civilians working within the Military Services, the National Guard, and other DoD Components that have SAPR programs (U.S. Army, September 27, 2024). A June 2025 DoD Sexual Assault Prevention and Response Office (SAPRO) fact sheet describes the civilian process: in DoD components that have a SAPR program, civilian employees report with the assistance of a SARC or SAPR victim advocate and file a restricted or unrestricted report on a separate form, DD Form 2910-8; they may also report directly to law enforcement if they are not considering a restricted report. Organizations without a SAPR program may arrange this through a written support agreement with another DoD component. Contractors and family members of civilian employees should confirm their own eligibility with a SARC.

Timing: the regulation and current policy differ. The regulation still says the victim must sign DD Form 2910 electing the restricted option “before the SARC is informed of an ongoing independent investigation of the sexual assault” (32 C.F.R. § 103.6(c)). Later policy, as the Army describes it, is broader: an Army article published January 8, 2026, states that a restricted report can be filed even if the assault was reported to law enforcement by anyone other than the victim, or if an investigation has been initiated, is in progress, or has been closed; it cannot be filed if the victim personally reported the incident to law enforcement or previously filed an unrestricted report on DD Form 2910. The same article notes that a restricted report can be changed to an unrestricted report at any time, but not the reverse. Because the regulation and current policy differ, a victim should confirm eligibility with a SARC before deciding. Restricted reporting “may not be available in a jurisdiction that requires mandatory reporting if a victim first reports to a civilian facility or civilian authority” (32 C.F.R. § 103.6(a)). The regulation adds that federal law (section 536 of the FY2016 NDAA) preempts mandatory reporting laws when the victim first reports to a military treatment facility, except when reporting is necessary to prevent or mitigate a serious and imminent threat to someone’s health or safety (32 C.F.R. § 103.6(a)). Special Victims’ Counsel are available under either option (§ 1044e).

Sources

This article is general information about military law, not legal advice for any individual case.