(Credit: david_franklin - stock.adobe.com)
Azimuth Check
Ten Years In
Special Victims’ Counsel Practice in the Era of the Office of Special
Trial Counsel
By Colonel Evah K. McGinley
Military justice is certainly not new as a practice area within our
Army; military justice predates the very founding of our country.
Mirroring the history of our own Judge Advocate General’s (JAG) Corps,
the practice of military justice can trace its roots all the way back to
1775 and the Articles of War established by the Second Continental
Congress.1 By contrast, the Special
Victims’ Counsel (SVC) Program is dramatically younger, having
commemorated its tenth anniversary on 13 October 2023. Throughout the
past decade, the SVC Program has developed and adapted; it will continue
to do so as we embark upon an entirely new chapter of military justice
practice.
Where We Have Been
Now a decade old, SVC programs across the Department of Defense (DoD)
grew from congressional (and DoD) concerns about the representation of
victims’ interests in military justice proceedings. Each Service stood
up its own version of the SVC Program. The Air Force was the first out
of the gate with the Army following closely behind several months later,
ultimately beating the timeline within the National Defense
Authorization Act for Fiscal Year 2014 statutory provisions through
which Congress directed the program.2
Upon its inception, the Army’s SVC Program consisted of JAG Corps
attorneys already serving in an array of different jobs, pulled together
on short notice for a critical new mission—but without clear guidance on
what the future might look like.3
The first SVCs knew the congressional (and secretarial) intent4
and worked to execute with independent initiative and absolute
dedication to the needs of their assigned clients. These early Army SVCs
were actually SVAs (special victim advocates) prior to an impromptu name
change to avoid confusion with other stakeholder entities, including
victim advocates.5 This change
clearly delineated SVCs as dedicated attorneys representing individual
clients—with the same attorney-client relationship seen in legal
assistance offices or Trial Defense Service.6
Originally, the SVC Program was limited to the Active component and
provided services only for adult victims of sexual assault.7
By May of 2014, the Secretary of the Army expanded the SVC Program to
include the Reserve components.8 In
the years following, developments continued, including the amendment of
Military Rule of Evidence 513 to provide additional victim rights9
and access to SVC representation for DoD Civilians in May of 2017.10
Three years later, in 2020, the Army gave SVCs the mission to provide
legal representation to victims of domestic violence, including cases
where that violence is not connected to a sexual assault.11
Attorneys entering the JAG Corps today have never known the practice of
law in the Army without the SVC Program.
Where We Are Now
Attorneys entering the JAG Corps today have never known the practice of
law in the Army without the SVC Program. The same can be said for judge
advocates in the ranks of captain and major and even some lieutenant
colonels, many having personally served in this role. Simultaneously,
many of their leaders are too senior ever to have served as SVCs
themselves and spent the majority of their formative jobs practicing
military justice before the advent of any SVC programs. As a result, SVC
practice occupies a unique space where it is the standard for some but
still relatively new to others.
The SVC practice is also unique in that it occupies space in two
different traditional practice areas: military justice and legal
assistance.12 The balance between
those two areas and interests can vary widely depending upon the case.
On one hand, SVCs can be seen as one of the four pillars of military
justice practice,13 joining their
colleagues in the prosecution, defense, and the judiciary. However, at
its core the SVC Program is a hybrid between military justice and a
legal assistance construct, described within Army Regulation 27-3,
The Army Legal Assistance Program.14
Special victims’ counsel also fall under the supervisory purview of
their local chief of client services, solidifying their legal assistance
roots.
The organizational framework is also structured for such consonance.
Staff judge advocates (SJAs) maintain command and control of SVCs as
individual personnel, ensuring their installations and commands support
SVC services. The SVC Program Office maintains technical chain support,
and the regional managers work to cross-level SVC services between
installations and SVCs. Ultimately, the individual SJAs directly manage
the SVC support available within their offices, but to do so requires a
team effort to ensure that cross-leveling support between SJAs is
manageable and efficient.
A mixture of military justice and legal assistance, SVC work is
intricate and varied. Some cases may be almost exclusively military
justice work, involving preparation for and representation through a
Criminal Investigation Division interview followed by work at a
court-martial, perhaps including arguing motions before the court. In
other cases, the work may be primarily assisting a client with their
understanding of administrative processes in the Army and guiding them
through a separation agreement or, perhaps, a landlord-tenant issue
emerging from the disruption to housing arrangements following a
domestic violence incident.
That same synthesis is seen in both the Reserve and National Guard SVCs
as well, although the work there is not identical. In the National
Guard, the SVC program manager directly manages the program rather than
the individual SJAs as in the Active component. In the U.S. Army
Reserve, the legal operations detachment manages SVCs, responsible for
ensuring appropriate SVC support across the force, but they are aided by
a centralized SVC Program Office at Legal Command. For both Reserve
components, the complications of providing services to a part-time,
often geographically dispersed force is significant.
Army Regulation 27-3 covers the SVC Program along with all other legal
assistance services, so no independent regulation governs the SVC
Program’s conduct. However, a much-anticipated DoD instruction focusing
on SVCs is imminent. Taking both documents in tandem may help to better
define the unique role SVCs occupy. What is clear is that SVCs offer
something no other practitioners can: a dedicated and specific
representation of their client’s interests. Notably, SVCs do not always
pursue what may be termed “the client’s best interests.” Rather, SVCs
pursue the express intent of their client, requiring the client to
directly inform their counsel of their desired outcome and
interests—even when such an outcome might not necessarily be in line
with the client’s objective best interests. While that might initially
seem counterintuitive, it nonetheless represents the key aspect of SVC
practice: assisting the client to understand and manage a situation
resulting from an incident or incidents where the client did not have
agency and control. Restoring the client’s ability to have a “say so” in
the matter is a dramatic step towards helping that client to regain that
lost sense of control.
Where We Are Heading
The unique aspects of SVC practice have made it successful over the last
ten years and are likely to define how the practice will continue. A
client-centric approach to service underpins the SVC Program, now a
mainstay component of the military justice landscape across the Army.
The resourcing and advocacy of SVCs is without a linear counterpart in
the civilian system. While various jurisdictions continue to make
strides with respect to support and advocacy for victims, the broad
nature of SVC services for clients in courts and proceedings across the
Army gives eligible victims a benefit unavailable in the civilian
system.
Special victims’ counsel are privileged to assist clients who are
enduring some of the most difficult days of their lives.15
This is a type of hands-on, meaningful practice available to few
attorneys in the civilian sector and rarely with the level of resourcing
and training provided to our Army counsel. As a single (and massive)
jurisdiction, the Army has uniformly and successfully implemented
funding and methodological infrastructure throughout our footprint to
continue in service and protection of victims’ rights. In every area of
operation within the larger Army jurisdiction, SVCs serve in that
critical role between the justice system and the victim-clients.
Evolution continues as the SVC Program expands the breadth of
experienced counsel. Most recently, The Judge Advocate General
authorized the launch of the Civilian SVC Pilot Program to determine how
the Army might leverage the expertise and experience of our Civilian
legal assistance attorneys as SVCs. If the pilot proves successful, the
option for a Civilian SVC would dramatically increase flexibility for
SJAs in an environment with a limited number of uniformed attorneys. It
would also allow clients, especially those unlikely to move from their
local area, to maintain the same SVC throughout the duration of their
case—even in situations where the case may take numerous months.
Further evolution into a more robust appellate practice is also on the
table as the Army reviews ways to engage in that work.
If the pilot proves successful, the option for a Civilian SVC would
dramatically increase flexibility for SJAs in an environment with a
limited number of uniformed attorneys.
Conclusion
As the practice of military justice in our Army enters an entirely new
chapter with the Office of Special Trial Counsel, the SVC Program will
continue to develop and adapt. The provision of dedicated counsel is
imperative for this critical mission that ensures our Soldiers, Family
members, and Civilian employees are provided the best advocacy possible.
TAL
COL McGinley is the Special Victims’ Counsel Program Manager in the
Office of The Judge Advocate General at the Pentagon.
Notes
1. 2
Journals of the Continental Congress 1774-1789, at 111-23 (W.C. Ford ed., 1905) (June 30, 1775);
see also
William Winthrop, Military Law and Precedents 21-23 (2d ed. 1920).
2. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No.
113-66, sec. 1716, 127 Stat. 672, 966 (2013).
3. The Judge Advoc. Gen., U.S. Army, TJAG Sends, Vol. 39-02, Special
Victim Advocate Program (15 Oct. 2013).
4. See 10 U.S.C. § 1044e; National
Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239,
sec. 573, 126 Stat. 1632, 1755.
5. Lieutenant General Stuart W. Risch, Judge Advoc. Gen., U.S. Army,
Address at the Tenth Anniversary of Special Victims Counsel
Program, at 32:49, DVIDS (Oct. 24, 2023),
https://www.dvidshub.net/video/901522/10th-anniversary-special-victims-counsel-program
(attributing this shift in title to Major Kate Mitroka);
id. at 20:25 (featuring Major Kate
Mitroka describing her conversation with then-Lieutenant Colonel James
R. “Jay” McKee to change “special victim advocate” to “special victim
counsel”).
6. See 10 U.S.C. § 1044e(c);
U.S. Dep’t of Army, Reg. 27-3, The Army Legal Assistance Program ch. 7 (26 Mar. 2020) [hereinafter
AR 27-3]; U.S.
Dep’t of Army, Reg. 27-10, Military Justice ch. 6 (20 Nov. 2020).
7. Colonel Louis P. Yob,
The Special Victim Counsel Program at Five Years: An Overview of Its
Origins and Developments, Army Law., no. 1, 2019, at 65,
69.
8.
U.S. Dep’t of Army, Dir. 2014-09, Reserve Component Eligibility for
the Special Victims’ Counsel Program (7 May 2014); see also U.S. Dep’t of Army, Sexual Assault Prevention and Response Progress
Report to the President of the United States
17 (5 Nov. 2014).
9. See Carl Levin and Howard P. “Buck”
McKeon National Defense Authorization Act of Fiscal Year 2015, Pub. L.
No. 113-291, sec. 537, 128 Stat. 3292, 3369 (2014).
10.
U.S. Dep’t of Army, Dir. 2017-16, Civilian Employee Eligibility for
the Special Victims’ Counsel Program (1 May 2017).
11. Memorandum from The Judge Advoc. Gen., U.S. Army, to Judge Advoc.
Legal Servs. Pers., subject: Domestic Violence Victim Representation
Program (19 June 2020); National Defense Authorization Act for Fiscal
Year 2020, Pub. L. No. 116-92, sec. 548, 133 Stat. 1198, 1378 (2019).
12. See 10 U.S.C. § 1044e(c);
AR 27-3,
supra note 6, ch. 7; U.S.
Dep’t of Army, Reg. 27-10, Military Justice paras. 17-7(c), 17-11 (20 Nov. 2020).
13. Lieutenant General Stuart W. Risch, State of the Corps (31 Oct.
2023) (unpublished PowerPoint presentation) (on file with author).
14. AR 27-3, supra note 6.
15. Pol’y Memorandum 22-13, The Judge Advoc. Gen., U.S. Army, subject:
Special Victims’ Counsel (1 Mar. 2022).