It is Day 1 in your job as the new special victims counsel (SVC), and you get a call requesting SVC services for a victim of domestic violence. Your automatic inclination is to inquire further as to whether or not the victim is a victim of a sexual offense; otherwise, you are of the belief that they are not eligible for services. But then you remember the training you received on domestic violence at the SVC certification course, which drives you to dig deeper.
The National Defense Authorization Act for Fiscal Year 2020 (FY20 NDAA)1 brought sweeping changes across the military, especially for the SVC Program. While changes such as advising SVC clients on retaliation and making SVC services available at all installations are important updates to the program, the most impactful change to the SVC Program is that SVCs can now represent victims of domestic violence offenses. Starting 1 December 2020, the Army SVC Program began accepting these clients, subject to the parameters below. This will impact the SVC Program and the legal assistance attorneys (LAAs), as LAAs and SVCs will need to work together on which actions each can take, respectively.
Section 548 of the FY20 NDAA provides that, before 1 December 2020, the Army must implement a program for "legal counsel" for victims of domestic violence offenses that are otherwise entitled to legal assistance under 10 U.S.C. § 1044e.2 Qualifying offenses include Articles 128(b), 128b(1), 128b(5), and 130 of the Uniform Code of Military Justice (UCMJ), when committed against a spouse, intimate partner, or immediate family member; any other allegation or violation of the UCMJ when committed against a spouse, intimate partner, or immediate family member; and any attempts of these offenses under Article 80.3 Used in this context, the terms spouse, intimate partner, and immediate family member, are defined using Article 130(b), UCMJ.4
While the term "legal counsel" is not defined in Section 548,5 this role will primarily be taken on by LAAs—with the Chief of Legal Assistance (CLA) requesting, through the SVC Program office, an SVC to represent the victim in the following cases:
- [If there is an alleged sexual offense covered under Article 120.]6
- If the victim makes a restricted or unrestricted report of aggravated assault under Article 128(b), UCMJ,7 commission of a violent offense against a spouse, an intimate partner, or an immediate family member under Article 128b(1), UCMJ, or strangulation/suffocation under Article 128b(5), UCMJ.8
- Court-martial charges are preferred, the trial counsel requests an interview with the victim with the intent to prefer charges, or an adverse administrative separation or officer elimination hearing is initiated against the subject.
- In any other case where the LAA as the primary attorney believes that SVC representation will better serve the client and the [Legal Assistance Office] and SVC Program Manager agrees to assign an SVC to the victim.9
In lieu of an LAA, one example of a situation where SVC assistance could further the representation is when Criminal Investigation Division (CID) requests a crime scene examination and the crime occurred in the victim’s barracks room. Legal assistance attorneys must be able to recognize these triggering events because they will need to disclose them to their CLA so that the CLA can reach out to the SVC regional manager to detail an SVC—preferably from the same installation.10 When an SVC cannot be detailed at the same installation, an SVC at the nearest Army installation should be detailed in order to comply with the NDAA requirement to have an SVC available within seventy-two hours of the request.11
Sometimes, LAAs will also be certified as SVCs. To alleviate the emotional, physical, and mental burden it can place on a victim, it should be a normal practice for the LAA to continue representation once a triggering event is captured—pending approval from the CLA and SVC regional manager. This will provide the victim much-needed relief in knowing that they have one attorney providing legal services to them, instead of having to go through two attorneys. Today, victims of sexual offenses usually do not have the same SVC from representation onset to case completion; thus, this is a possible solution to allow continuous representation throughout the process. While SVCs and LAAs still rotate out of the positions due to mission and career requirements, the addition of LAAs will result in less common occurrences where the victim has a new or multiple SVCs/LAAs.
On certain occasions, an LAA and SVC will dually represent a domestic violence victim. The LAA will represent the client on issues covered under Army Regulation (AR) 27-3, paragraph 3-5.12 These issues include, but are not limited to: marriage, legal separation, divorce, financial nonsupport, and child custody and visitation. In accordance with AR 27-3, chapter 7, and the SVC Handbook, the SVC will provide all legal services associated with the criminal or adverse administrative cases—with the exception of collateral misconduct.13 The Trial Defense Service will service collateral misconduct arising out of SVC/LAA representation.
Legal assistance attorneys should know that they will be the primary attorney assigned to represent domestic violence victims, as SVC representation does not automatically trigger.14 Many of the issues that an LAA will come across can be found in AR 27-3; however, for the LAA that receives a domestic violence client that does not fit in AR 27-3, it is important to know what to do.15
Since SVC representation is not automatically triggered, LAAs representing domestic violence victims will need to be aware of their additional responsibilities. For example, the LAA will need to inform clients of scheduled interviews. The LAA will coordinate with law enforcement to attend the interview, and advocate for their client’s rights. Legal assistance attorneys will also need to establish relationships with both on-post and off-post law enforcement to ensure the client’s rights are protected. These relationships with CID, Military Police investigators (MPI), and local law enforcement will ensure 1) efficient communication and 2) protection of victims’ rights.
For SVCs assigned to domestic violence victims once a triggering event occurs, SVCs will coordinate with CID, MPI, and/or local law enforcement for the interview and throughout the military justice process, advocating for clients’ Article 6b rights until final case disposition.16 The investigative process is where most difficulties lie.
The investigative process for both an SVC and LAA can be difficult from the onset of an allegation of domestic violence, and nuances center around the alleged UCMJ article violated and the location of the offense(s). For instance, CID only investigates domestic violence offenses when there is an allegation of strangulation, aggravated assault causing death or grievous bodily harm, and assaults consummated by a battery to children under sixteen years.17 All other on-post domestic violence offenses are investigated by MPI.18 When offenses occur off-post, local law enforcement will take the report and require the victim to file a complaint in order for prosecution to occur on the civilian side. Special victims counsel still need to be involved—even if the ability to advocate for victims is limited.
Special victims counsel assigned to represent domestic violence clients must form and continue relationships with military justice advisors, special victims trial counsel, special victims prosecutor teams, CID, and now MPI. Additionally, SVCs must create continuing relationships with other programs associated with domestic violence—including the Family Advocacy Program, local law enforcement, and civilian prosecutors. In forming these relationships, Section 550A in the FY20 NDAA mandates that counsel receive appropriate training in the state criminal justice laws of the state (or states) in which the installation is located.19 These relationships will be a key foundation in providing domestic violence victims with the services they need to combat the traumatic event(s) experienced. Special victims counsel should coordinate early and often with these points of contact to foster good relationships for the sake of their clients.
Terminating representation of a domestic violence victim will not change the process of an SVC once a terminating event occurs. The SVC, once a terminating event occurs, will terminate representation just as they would for a sexual offense victim.20 However, the SVC, if in a dual representation capacity with an LAA, should ensure a warm transfer to the LAA as the sole representative to conclude any final areas of assistance for the victim, such as divorce, family support, or transitional compensation, if applicable.21
As SVC caseloads are expected to increase with the addition of domestic violence clients, coupled with an upward trend in domestic violence offenses, it is even more important to ensure proper management of caseloads.22 Special victims counsel must maintain an accurate report of their number of clients to ensure proper management of caseloads, so that assignment of new cases is fluid and within the limits mandated by Congress.23 Another suggestion to accommodate the uptick in caseloads is to create more SVC positions to address the NDAA caseload restrictions—of course, this would depend on the installation. While additional billets would not be an instant relief, over time, it will counter the increased caseload of current SVCs.
In response to the addition of domestic violence victims, SVCs and LAAs assisting domestic violence clients will also be required to undergo specific training24 in legal issues commonly associated with domestic violence offenses.25 This will include training on issues of domestic violence, representation in intimate partner violence, and other relevant topics. This training for SVCs will come in the form of training blocks during the SVC certification course, with LAAs receiving specialized training through similar blocks of instruction conducted by the Director of Soldier and Family Legal Services in coordination with The Judge Advocate General’s Legal Center and School and the Criminal Law Division, Office of The Judge Advocate General.26 Another suggestion for Offices of the Staff Judge Advocate (OSJAs) is to continue providing training on the nuances of domestic violence representation, through leader professional development. As this addition to the SVC/LA Programs is a major change, there will be periodic updates that the LAO—and the OSJA—should be aware of to ensure quality representation of victims.
In summary, the addition of domestic violence victims as clients for SVCs and trained LAAs will result in new challenges. But with proper communication and relationship building, coupled with training opportunities, SVCs and LAAs will be ready to address the new clients and provide competent and zealous representation to domestic violence clients. TAL
1. National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92, 133 Stat. 1198 (2019).
2. Id. § 548.
3. Id. UCMJ arts. 128b, 128b(1), 128b(5) (2019); UCMJ art. 130 (2019). See also UCMJ art. 80 (1950).
4. UCMJ art. 130(b) (2016).
5. National Defense Authorization Act for Fiscal Year 2020 § ٥٤٨.
6. UCMJ art. 120 (2017).
7. UCMJ art. 128b (2019).
8. UCMJ art. 128b(1), 128b(5) (2019).
9. Policy Memorandum 20-03, The Judge Advoc. Gen., U.S. Army, subject: Domestic Violence Victim Representation Program (19 June 2020) [hereinafter Policy Memorandum 20-03]. See also Memorandum from Karen H. Carlisle, Director of Soldier and Family Legal Services to All Judge Advocate Legal Service (JALS) Legal Assistance Practitioners, subject: Business Rules for Implementation of TJAG Policy Memo 20-03: Domestic Violence Victim Representation Program (Nov. 25, 2020) [hereinafter Implementation of Policy Memo 20-03].
10. See supra note 9.
11. National Defense Authorization Act for Fiscal Year 2020 § 542.
12. Id. U.S. Dep’t of Army, Reg. 27-3, The Army Legal Assistance Program para. 3-5 (26 Mar. 2020) [hereinafter AR 27-3].
13. Id. ch. 7; U.S. Dep’t of Army, Special Victims Crime Handbook 36-37 (5th ed. 2020) [hereinafter SVC Handbook].
14. AR 27-3, supra note 12, para. 3(a).
15. See id.
16. UCMJ art. 6b (2017).
17. See U.S. Dep’t of Army, Reg. 195-2, Criminal Investigation Activities tbl.B-1 (21 July 2020).
19. National Defense Authorization Act for Fiscal Year 2020 § 550A.
20. See SVC Handbook, supra note 13, ch. 11. Termination of a sexual assault victim occurs when a special victims counsel (SVC) has a permanent change of station, deploys, has an expiration of term of service, or leaves the position; the continued representation will result in a violation of my State’s Rules of Professional Conduct or other law; the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (the typical example of this is if the SVC has had no contact with client for an extended period of time and SVC cannot reach client after due diligence in attempting contact); or final case disposition, whether it be submission of post-trial matters in a court martial, a not-guilty finding at a court-martial, completion of an Article 15/Administrative Separation, or a non-probable cause/non-prosecution decision. The process of terminating a client occurs by conducting a consultation with the client, explaining the basis of termination, and submitting to the client a termination of representation letter. Id.
21. See AR 27-3, supra note 12, para. 8-5c.
22. Off. of the Provost Marshal Gen., FY2018 Army Crime Report (Sept. 2019) (from fiscal years 2011 to 2018, "the offender rate increased by 5% (310 to 326 offenders per 100,000) and the offense rate increased by 7% (428 to 457 offenses per 100,000).").
23. National Defense Authorization Act for Fiscal Year 2020 § 541(g) ("[T]he Secretary concerned shall ensure that the number of Special Victims Counsel serving . . . is sufficient to ensure that the average caseload . . . does not exceed, to the extent practicable, [twenty-five] cases [at] any given time.").
24. With the onset of COVID-19, training has gone to a distance learning format. As COVID-19 becomes more manageable, in-person attendance requirements may increase.
25. National Defense Authorization Act for Fiscal Year 2020 § 548.
26. Policy Memorandum 20-03, supra note 9.