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National Crime Victim Law Institute

Landmark Victory for Victims in the Military – and Beyond

July 18, 2013

Today in a case NCVLI has worked on side-by-side with the Air Force since January, the United States Court of Appeals for the Armed Forces issued a significant case affirming the right of victims in the Air Force who are represented by an attorney to have that attorney present legal arguments to the court on their behalf. At its core this decision means that victims truly can have an independent voice in court martial proceedings when their privacy is at issue.

In Airman First Class (E-3) LRM v. Lieutenant Colonel Kastenberg, defendant was charged with raping a female Airman. As part of a larger Air Force program to combat sexual assault, the Air Force JAG Corps had implemented a special victims’ counsel (SVC) program that allows the appointment of counsel for victims of sexual assault. The victim was appointed an SVC, who entered his appearance in the court martial (which is akin to a criminal case) and asked to be provided copies of relevant papers regarding any rape shield issues and any privilege issues so that he could properly represent his client and be heard when necessary by the court. In asking for these things the SVC argued that as the Military Rules of Evidence expressly gave the victim the “right to be heard,” she must be provided copies of the motions so she can understand the arguments being made regarding her privacy interests and thereby receive a “meaningful opportunity” to respond and be heard. The military judge held that the victim had no standing to ask for the documents or to be heard through her attorney. Upon the SVC’s request, NCVLI provided research and strategic assistance in drafting a motion for reconsideration of the military judge’s order, which the military judge denied. The victim, through counsel, then sought appellate review and NCVLI participated as amicus curiae. The first appellate court, the Air Force Court of Criminal Appeals did not reach the merits of the case, holding that it did not have authority to hear the case. So the victim, through counsel, again sought review and NCVLI again participated as amicus curiae. Today that decision issued and the landscape of what a sexual assault victim’s role is in the court martial proceedings against his or her perpetrator was clarified.

Thanks to the amazing strength of the survivor in this case and the talents and dedication of the SVC and subsequent appellate counsel, today sexual violence victims in the Air Force have clarity that they can have an independent voice in the process when their privacy and protection rights are at issue.

To read more about NCVLI’s work on behalf of military sexual assault victims, click here.

Update as of August 2013: The United States Coast Guard and Navy have now announced the launch of similar programs providing independent legal counsel to sexual assault victims.  Click here to read more in the Navy Times.