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Sexual assault in the military: Can special counsels for victims help?

After a wave of sexual assault cases in the military, the Air Force is using special lawyers in a venture that top Pentagon officials hope will transform the way the armed forces treat victims.

By Anna MulrineStaff writer / July 17, 2013

Graduating Air Force cadets stand at attention at the commencement ceremony for the class of 2013 at the US Air Force Academy north of Colorado Springs, Colo.

Brennan Linsley/AP

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Montgomery, Ala.

They have a job title that sounds as if it were lifted from a television crime drama – special victims' counsels, or SVCs – and they could be one of the Pentagon's brightest hopes in combating the epidemic of sexual assault in its ranks.

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The program, which officially launched last month, is part of a series of ventures that top Pentagon officials hope will transform the way the armed forces treat victims of sexual assault. Staffed by Air Force judge advocates general (JAGs) charged with standing up for victims' rights, the program is perhaps the Pentagon's most cutting-edge endeavor so far to combat sexual assault. 

Its underlying philosophy is that one of the most important steps to creating a culture that discourages sexual assaults is to more effectively prosecute sexual predators within the ranks.

The quest for solutions is becoming urgent as the scope of the problem has become more apparent this year.

In early 2013, the Department of Defense released an alarming report that showed that although claims of sexual assault were rising, only a tiny fraction were reported – pointing to victims' distrust of the military justice system's ability to handle their cases fairly.

Then came a series of sexual-assault allegations that underscored the pervasiveness of the problem. This led some members of Congress to suggest at a particularly contentious June hearing that the chain of command in sexual-assault cases needed to be altered – a move the Pentagon strongly opposes.

As a result, the rest of the services are watching the Air Force's SVC program, aware that if they don't show that they are taking the problem seriously – and showing results in short order – Congress's patience could run out.

The SVC program is just one of several new initiatives to try to tackle the scourge of sexual assault. There are, for instance, "bystander intervention" programs in all the services that stress the role that friends can play in protecting fellow troops from assault by stepping in and discouraging aggressive or coercive behavior.

There is also extensive training for new recruits that increasingly emphasizes no tolerance for the crime.

At the same time, the Pentagon is taking new steps to survey the "command climate" of units to gauge the extent to which abusive behavior – or tolerance for it – may be lurking in the ranks. To this end, the Marine Corps recently created a new "command climate survey" with 34 questions.

"At least five of those deal with sexual assault, sexual harassment, confidence in the leadership to be able to protect and take care of the interests of the young marine," Gen. James Amos, the top officer in the Marine Corps, told lawmakers last month.

"There is an expectation for each of our commanding officers to set the conditions, the climate, in his or her organization that not only does all the combat stuff ... but also sets the environment such that the young marines that are in that unit are comfortable."

But lawmakers – and senior military officials – increasingly stress the primary need to hold perpetrators accountable as a crucial part of the solution.

A Pentagon report released in May showed that instances of US troops who said they were sexually assaulted rose from some 19,000 in 2010 to more than 26,000 in 2012. But in the most recent year for which statistics are available, only 3,200 people reported the crime, resulting in 191 convictions.

This news came in the midst of a disturbing series of debacles for the US military. In May alone, the Air Force officer in charge of the service's sexual-assault prevention program was himself arrested for attempting to sexually assault a woman in a parking lot in Arlington, Va., and an Army sergeant stationed at Fort Hood, Texas, was charged with forcing a lower-ranking soldier to take part in a prostitution ring and sexually assaulting at least two other subordinates.

At the congressional hearings that followed, much of the discussion surrounded the case of Lt. Col. James Wilkerson, a former Air Force inspector general, who was convicted by a jury of aggravated sexual assault before a three-star general overturned the conviction.

Wilkerson's colleagues cited his "excellent" job performance as an F-16 pilot. Lt. Gen. Craig Franklin, who overturned the case, wrote a memo to the secretary of the Air Force explaining his decision: "Based on all the letters submitted in clemency, in strong support of him, by people who knew him, such behavior appeared highly incongruent."

This move drew the ire of a number of lawmakers, who suggested that sexual-assault perpetrators can also be charming people who are good at their jobs. It was this incident that helped spur senators to propose legislation this month to remove commanders from the process of deciding whether and how to proceed with a case – a measure that appears to be gaining broad bipartisan support in the Senate.

"This is not a Democratic idea. It is not a Republican idea. It is a good idea that meets the needs of the victims, creates transparency and accountability, and creates the needed objectivity that this issue deserves," Sen. Kirsten Gillibrand (D) of New York said in a Capitol Hill press conference Tuesday, while pointing out that Germany, Britain, and Israel already have adopted similar measures. 

This prospect troubles military officials – and raises the stakes for the Air Force's newly minted SVCs.

The program is the baby of the Air Force's top lawyer, Lt. Gen. Richard Harding, who has handpicked each of the SVCs. In 2011, he notes, nearly one-third of victims who filed sexual-assault charges against a fellow servicemember ended up deciding to withdraw them.

"Many of those folks did so because they became exhausted and frustrated by the process," Harding says.

At the Air Force's judge advocate general school in Montgomery, Ala., Harding emphasizes this point to the 24 Air Force lawyers who will work at bases across the country as part of the inaugural class of full-time SVCs. "Accountability can't take hold until we start getting more people reporting," he says.

Until the service can bring up levels of prosecution for sexual assault, he says, predators may be encouraged to carry on with little fear of reprisal.

Harding chose the SVCs here with a particular eye toward those who are dogged and highly skilled litigators, and who are also empathetic, he says.

In the six months since the pilot program began in January, senior military officials say they are seeing some positive trends: Instead of dropping cases, half of the sexual-assault victims who begin the process not planning to prosecute instead decide to move forward with a prosecution.

In all, more than 300 airmen have put in a request for an SVC to represent them as they file sexual-assault charges.

"That's a lot of people," Harding says. "A huge demand signal, certainly."

In a survey of the hundreds of airmen who have had an SVC, 100 percent reported being "extremely satisfied with the advice and support" that the SVC provided. One respondent wrote that the SVC provided "comfort and confidence when you have had so much taken away."

The SVCs are not prosecutors – their job is not to argue the case on behalf of the victim. Rather, their job is solely to represent the victim's interests during the legal process.

It is a vital function in today's military, says Meg Garvin, executive director of the National Crime Victim Law Institute.

The concept of victims' rights has not been a priority in the past, which is what makes the Air Force's SVC program "really groundbreaking," she says. "Victims' rights has been treated like a rhetorical pat on the head, not the law."

This meant "that even though the law says that the victim has a right to be heard, it wasn't treated legally like a right," she adds. "It was more like a legal nicety – as in, 'We'll give it to you if we think it's right for the case,' as opposed to, 'You have ownership over this right and how would you like to use it?' "

This is particularly important when the aims of the prosecutor diverge from those of the victim, which can happen frequently in sexual-assault cases.

For example, the SVC might work to protect the privacy of the victim, even if that means that the prosecution cannot have access to information that could help win a conviction.

Indeed, even if a conviction does not seem likely, more victims may be willing to pursue charges if they do not feel revictimized by the judicial process, senior military officials say.

One active-duty Air Force sergeant, who said he was sexually assaulted by a fellow airman, was hesitant to report an assault and had decided not to prosecute. After being put in touch with an SVC, however, his feelings changed.

Having a lawyer meant there was someone "to actually represent me and to take my feelings and thoughts into consideration," says the sergeant, who asked to remain anonymous.

Even though the trial did not result in a conviction, the sergeant says he is at peace with the outcome and plans to pursue his military career.

Many of the SVCs in Montgomery have been prosecutors in sexual-assault cases before. They say the move to SVC has been liberating.

"It's a very freeing experience to be their attorney and to be able to speak to them in a way that says, 'Here's what you should be doing. Here's how we can make things better for you,' " says Capt. Aaron Kirk, a new SVC in San Antonio.

One Air Force lawyer recalls a case in which a sexual-assault victim wanted to know whether she had to meet with a defendant's attorney, who had just asked to interview her for the fourth time.

"You want to say, 'Heck, no, you don't have to talk with them. They're on a fishing expedition,' " he says. But the Uniform Code of Military Justice rules prevent him from providing any advice to the victim that might be seen as interfering with the defense's collection of evidence.

At the beginning of the case, "You explain your role: 'I'm not your lawyer. I'm not here as your counselor.' That can sound very harsh," says an Air Force prosecutor who spoke on condition of anonymity. "You try to have a positive relationship, but you're not their lawyer."

As an SVC in Colorado Springs, Colo., former prosecutor Capt. Lorraine Sult says that she has found her clients' needs are different from what she previously recognized. Some would rather have their attackers go to counseling than get jail time, for example.

"As prosecutors, we think they just want the conviction," she says.

"It has been very enlightening to understand the frustration that they feel with the system," Kirk adds.

He recalls being struck by "how little information" sexual-assault victims get during the course of their cases – and "how much work it takes" to get it. As an SVC, "We can help pipeline some of that information to them," he says.

In his new job, Kirk says he continues to be particularly drawn to the "rewarding aspects of the SVC program."

"It's very gratifying to help someone who's going through ostensibly the worst time of their life," he says. "You can make a huge change in terms of a person's outlook in some cases."

While he is no longer taking part in the prosecution of cases, "you make their experience better, and you give them a voice in the process."

For some of his clients, "convictions are very important." For others, "They just want to be able to say, 'I got up and said what happened to me,' and that's enough."

For his part, Kirk says he welcomes the chance to help more people come forward to share their stories and perhaps experience some catharsis.

"Rape is a crime of silence. It thrives in an environment where people are afraid to come forward," he says. The more people feel comfortable coming forward, he adds, the greater the chances that the military can begin to put an end to it.

Still, the SVCs have encountered resistance, sometimes among Air Force judges who do not believe they should be in the courtroom.

That's because some legal experts worry that special victims' attorneys "will upset the balance of the justice system," says Ms. Garvin of the National Crime Victim Law Institute.

The argument is that "If the victim has his or her own lawyer, doesn't that make it two versus one? Doesn't that make it unfair?"

The difference is that the SVC "isn't a second prosecutor," Garvin says.

As the SVC program develops, its architect hopes that it will become a prototype for the rest of the armed services.

"I have no reason to believe that the Army, Navy, and the Marines would not see the very same positive responses from this program that we have seen," Harding says.

Beyond that, he says the program could serve as a model for the federal government as well. Addressing the lecture hall filled with SVCs in Montgomery, Harding emphasizes the importance of what lies ahead.

"Now, I don't want to put too much pressure on you," Harding tells them. "But the eyes of the nation are on you."

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