Advise, Advocate, and Empower: The U.S. Military’s Victims’ Counsel Program

BY TAYLOR M. CLARK

The views and opinions presented in this article are those of the author and do not necessarily reflect the views of the Department of War or its components.

In fiscal year 2024, the Department of Defense (DoD)(now called the Department of War, or DoW) received 8,195 reports of sexual assault and related crimes.¹1 Dep’t of Def., Fiscal Year 2024 Annual Report on Sexual Assault in the Military 3 (2025), www.sapr.mil/Portals/156/FY24_Annual_Report.pdf (on file with the author) (hereinafter Fiscal Year 2024 Annual Report). The total includes both unrestricted and restricted reports and is a slight decrease from fiscal year 2023. Id. “Sexual assault” encompasses “rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy, and attempts to commit these offenses” under the Uniform Code of Military Justice. Id., app. D, at 1, www.sapr.mil/Portals/156/FY24_Appendix_D.pdf (on file with the author). Over two-thirds of unrestricted reports originated from junior enlisted servicemembers.²2 See id., app. B, at 31, www.sapr.mil/Portals/156/FY24_Appendix_B.pdf. For those victims—and even for experienced officers and enlisted leaders—the military justice system can often feel intimidating and opaque. In addition to dealing with trauma from the offense, victims face myriad other considerations including protective orders, military obligations, and career implications.

Victims’ Counsel (VCs) step up to assist those victims in their time of need.³3 The services have different names for their victims’ counsel positions: Special Victims’ Counsel (Army and Coast Guard); Victims’ Counsel (Air Force); and Victims’ Legal Counsel (Navy and Marine Corps). For ease of reference, this article will refer to the position as Victims’ Counsel or VC. And while each Service has varying regulations regarding the scope of representation, this article will focus primarily on applicable Air Force guidance. VCs are military attorneys detailed to provide free legal representation to eligible victims of sexual assault, domestic violence, and sex-related crimes under the Uniform Code of Military Justice (UCMJ). VCs advise clients until the conclusion of their case, advocate for their rights, and empower them in the process. This article will give a general overview of the VC program—its establishment, the VC’s current role, and the changing dynamics of VCs and the military justice system—along with the unique role upholding victims’ rights and increasing access to justice.

History

First, an examination of the origins and evolution of the VC program is instructive. The VC program arose in the wake of increased publicity and awareness of sexual assault reporting and military commanders’ decisions regarding those reports. A succession of high-profile incidents of sexual misconduct and assaults—the 1991 Tailhook scandal and 2011 military training instructor cases among them—culminated with the documentary Invisible War, released in 2012.⁴4 See W. Hays Parks, “Tailhook: What Happened, Why & What’s to Be Learned,” 120 Proceedings Magazine (Sep. 1994), www.usni.org/magazines/proceedings/1994/september/tailhook-what-happened-why-whats-be-learned (discussing the Tailhook scandal); “Air Force Instructor Jailed for 30 Days in Military Sex Scandal,” NBC News (Aug. 3, 2012), www.nbcnews.com/news/us-news/air-force-instructor-jailed-30-daysmilitary-sex-scandal-flna921098 (discussing courts-martial for military training instructors); Invisible War, Amazon Prime (Rise Films 2012). The documentary followed sexual assault survivors grappling with the aftermath of their treatment within the military justice system.⁵5 Invisible War, supra note 4. At that time, an accused’s company or squadron commander (generally younger and less experienced commanders, at times with close connection to the accused) would often act as the final decision-making authority on sexual assault cases.⁶6 Id. Victims were often left grasping for answers as to the outcome of their case, feeling helpless in their pursuit of justice and frustrated with the lack of transparency.⁷7 Id.; see also Christian T. Miller, “About Face: U.S. Military Seeks Historic Overhaul of Justice System,” ProPublica (March 15, 2016), www.propublica.org/article/about-face-us-military-seeks-historic-overhaul-of-justice-system (outlining recent changes to military justice cases and victims’ rights); see also Casey Glynn, “Air Force Commander Defends Overturning Sexual Assault Guilty Verdict,” CBS News (April 11, 2013), www.cbsnews.com/news/air-force-commander-defends-overturning-sexual-assault-guilty-verdict/ (discussing general officer’s decision to overturn sexual assault conviction).

In response, the DoD instituted sweeping changes. Decision-making authority for sexual assault cases moved from the accused’s commander to senior leadership.⁸8 Karen Parrish, “Officials Explain New Sexual Assault Policies,” Am. Forces Press Serv. (April 25, 2012), www.af.mil/News/Article-Display/Article/111299/officials-explain-new-sexual-assault-policies/. In addition, the National Defense Authorization Act (NDAA) of fiscal year 2012 required each military department secretary to “prescribe regulations on the provision of legal assistance to victims of sexual assault” and that “[s]uch regulations shall require that legal assistance be provided by military or civilian legal assistance counsel.”⁹9 National Defense Authorization Act for Fiscal Year 2012, Pub L. No. 112-81, sec. 581, § 1565b(a), 125 Stat. 1298, 1431 (2011) (hereinafter FY 2012 NDAA). In late 2012, the U.S. Air Force initiated a pilot program providing legal assistance to sexual assault victims.¹⁰10 Rich Lamance, “Air Force to Provide Dedicated Legal Counsel to Sexual Assault Victims,” A.F. News Serv. (Jan. 7, 2013), www.afpc.af.mil/News/Article/422101/air-force-to-provide-dedicated-legal-counsel-to-sexual-assault-victims/. The other service branches soon followed, developing charters and expanding the programs permanently.¹¹11 Colonel Louis P. Yob, “The Special Victim Counsel Program at Five Years,” Army Law., No. 1, 2019, at 67.

Meanwhile, victims’ rights continued to progress. In 2013, the Court of Appeals for the Armed Forces—the military’s highest appellate court—determined that victims had limited standing to be heard on issues involving Military Rules of Evidence (M.R.E.) 412 (admissibility of a victim’s prior sexual behavior) and 513 (psychotherapist-patient privilege) in court-martial proceedings.¹²12 L.R.M. v Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013) (“The military judge erred by determining at the outset of the court-martial, during arraignment proceedings and before any (Military Rule of Evidence (M.R.E.)) 412 or 513 evidentiary hearings, that LRM would not have standing to be represented through counsel during applicable hearings arising from the M.R.E.”). Victims could now contest evidence or assert privileges that infringed on their rights. On the other hand, sexual assault victims could decline to testify at preliminary hearings or at trial.¹³13 10 U.S.C. § 832(d)(3) (2021). In 2014, victims’ rights were codified under 10 U.S.C. § 806b.¹⁴14 National Defense Authorization Act for Fiscal Year 2014, Pub L. No. 113-66, sec. 701, § 806b, 127 Stat. 672, 952-54 (2013).

Current Role

The current state of the VC program rests on the shoulders of those key developments. All service branches now maintain standalone VC programs. VCs represent not only active-duty members, but civilian dependents and minors, civilian DoW employees, and cadets or trainees, involving a range of qualifying crimes to include: domestic violence, stalking, and other sex-related offenses.¹⁵15 See, e.g., U.S. Dep’t of A.F., Instr. 51-207, Victim and Witness Rights and Procedures, paras. 3.2.2.2, 3.2.2.3 (Oct. 3, 2024) (outlining victim eligibility for VC representation).

Crucially, VCs work for their clients’ expressed interest.¹⁶16 See id., para 3.5 (“The VC has an ethical obligation to advocate for the expressed interests of the client, even if in conflict with what the VC or a third party believes is in the best interests of the client.”). In other words, VCs may disagree with a particular client’s decision (i.e., to decline to testify), but still zealously advocate for that client’s position, “[p]rovided a client’s request is legal and ethical.”¹⁷17 Id.

VCs advise and represent clients in all aspects of their military justice case. For example, VCs attend law enforcement interviews with their clients and ensure their rights are being protected. VCs ensure clients are regularly updated on the status of their cases. VCs advocate for protective measures for their clients, via a military protective order or request for an expedited transfer to a different installation away from the offender. VCs also advocate for their clients’ expressed interest regarding the requested jurisdiction and disposition of a crime.

In addition, VCs play a constrained, yet important, role in courts-martial proceedings. As mentioned, victims may be considered parties of limited standing, able to be heard on certain issues before the court. In sexual assault cases, VCs frequently argue pretrial motions concerning M.R.E. 412 and M.R.E. 513, in addition to other issues involving victims’ rights. In court, VCs sit in the gallery (in uniform) with clients, counseling them throughout the process and, at times, addressing the court. At sentencing, VCs are permitted to read victim impact statements on behalf of clients.¹⁸18 Manual for Courts-Martial, United States, R.C.M. 1001(c)(5) (2024). If victims believe their rights are being violated during the court-martial, VCs may assist them in filing for a writ of mandamus.¹⁹19 10 U.S.C. § 806b(e)(1) (2024).

Behind the scenes, VCs work  with clients in unique ways. One example is the “restricted” report. The 2012 NDAA authorized victims to make a confidential report of sexual assault, without reporting the crime to law enforcement.²⁰20 FY 2012 NDAA, supra note 9, at sec. 581, § 1565b(b). This allows the victim to maintain privacy and avoid the invasive, public nature of an investigation, while receiving needed services that they might otherwise be ineligible to receive (e.g., a sexual assault forensic examination).²¹21 Restricted Reporting, Dep’t of Def. Sexual Assault Prevention & Response Off., https://sapr.mil/restricted-reporting (last visited Sep. 24, 2025). Victims may also enter the Catch a Serial Offender (otherwise known as “CATCH”) Program, which notifies victims if their alleged offender is named in a separate law enforcement investigation, and may convert a restricted report to an unrestricted report at any time. Id. VCs work with clients to understand their rights and the legal landscape should victims decide to convert their report from “restricted” to “unrestricted” and initiate an investigation.

VCs also advise clients on collateral misconduct—potential crimes committed by the victim in the course of the sexual assault—such as underage drinking or curfew violations. In 2022, the DoD implemented the Safe-to-Report policy, which largely prohibits punishment of victims for “minor” collateral misconduct, allowing victims to report without fear of further punishment.²²22 The Army Resilience Directorate, DOD: Safe-To-Report Policy Protects Survivors (Jan. 14, 2022), www.army.mil/article/253284/dod_safe_to_report_policy_protects_survivors_from_being_disciplined_for_minor_collateral_misconduct. VCs assist clients to understand their legal exposure in reporting crimes and the impact of collateral misconduct.

A Changing Landscape

Through it all, VCs help their clients confront a changing landscape of military justice. In 2023, the military justice system received arguably its most significant overhaul since the promulgation of the UCMJ. Now, instead of senior commanders deciding on whether sexual assault cases should go to trial, the decision-making authority rests with each service’s respective Office of Special Trial Counsel.²³23 10 U.S.C. § 824a (2024). In short, experienced military prosecutors now decide whether sexual assault and other covered offenses proceed to a court-martial.

The VC program continues to receive some of the highest ratings of satisfaction from clients among support agencies.²⁴24 Fiscal Year 2024 Annual Report, supra note 1, at 4 (“Special Victims’ Counsel programs remain one of the highest rated, most used services offered to warfighters coping with an experience of sexual assault.”). Of note, “Department-wide surveys have noted a decrease in satisfaction since 2018 associated with services provided to Service members, with victim satisfaction reaching a new low in 2023.” Id. The program has consistently expanded the range of eligible clients and new developments may continue that trend. Sexual harassment is now a separate, defined crime under the UCMJ.²⁵25 See Exec. Order No. 14062, 87 Fed. Reg. 4763, 4784-86 (Jan. 26, 2022) (establishing sexual harassment as an article in the Uniform Code of Military Justice). At this time, sexual harassment victims are eligible only for a one-time consultation with VCs, but will a potential increase in courts-martial for this offense lead to full eligibility for VC representation? Similarly, civilian non-dependent victims are not eligible for VC services, yet benefit from the work of civilian counsel at court-martial.²⁶26 See Tom Jackman, “Army Ranger Accused of Raping, Assaulting Women,” Wash. Post (June 9, 2025), www.washingtonpost.com/national-security/2025/06/09/army-ranger-rape-trial/ (victims represented by civilian attorney). Expanded eligibility could come at a cost, however. VCs already “score significantly higher than other first responders on rates of burnout, compassion fatigue, and vicarious trauma.”²⁷27 Fiscal Year 2024 Annual Report, supra note 1, at 4-5 (footnote omitted).

Looking forward, two things are certain. VCs will continue to adapt to new changes and developments to serve the needs of clients. And victims in all roles—officer, enlisted, or dependent—will continue to benefit from the steadfast advice and advocacy of VCs. 

NOTES

1. Dep’t of Def., Fiscal Year 2024 Annual Report on Sexual Assault in the Military 3 (2025), www.sapr.mil/Portals/156/FY24_Annual_Report.pdf (on file with the author) (hereinafter Fiscal Year 2024 Annual Report). The total includes both unrestricted and restricted reports and is a slight decrease from fiscal year 2023. Id. “Sexual assault” encompasses “rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy, and attempts to commit these offenses” under the Uniform Code of Military Justice. Id., app. D, at 1, www.sapr.mil/Portals/156/FY24_Appendix_D.pdf (on file with the author).

2. See id., app. B, at 31, www.sapr.mil/Portals/156/FY24_Appendix_B.pdf.

3. The services have different names for their victims’ counsel positions: Special Victims’ Counsel (Army and Coast Guard); Victims’ Counsel (Air Force); and Victims’ Legal Counsel (Navy and Marine Corps). For ease of reference, this article will refer to the position as Victims’ Counsel or VC. And while each Service has varying regulations regarding the scope of representation, this article will focus primarily on applicable Air Force guidance.

4. See W. Hays Parks, “Tailhook: What Happened, Why & What’s to Be Learned,” 120 Proceedings Magazine (Sep. 1994), www.usni.org/magazines/proceedings/1994/september/tailhook-what-happened-why-whats-be-learned (discussing the Tailhook scandal); “Air Force Instructor Jailed for 30 Days in Military Sex Scandal,” NBC News (Aug. 3, 2012), www.nbcnews.com/news/us-news/air-force-instructor-jailed-30-daysmilitary-sex-scandal-flna921098 (discussing courts-martial for military training instructors); Invisible War, Amazon Prime (Rise Films 2012).

5. Invisible War, supra note 4.

6. Id.

7. Id.; see also Christian T. Miller, “About Face: U.S. Military Seeks Historic Overhaul of Justice System,” ProPublica (March 15, 2016), www.propublica.org/article/about-face-us-military-seeks-historic-overhaul-of-justice-system (outlining recent changes to military justice cases and victims’ rights); see also Casey Glynn, “Air Force Commander Defends Overturning Sexual Assault Guilty Verdict,” CBS News (April 11, 2013), www.cbsnews.com/news/air-force-commander-defends-overturning-sexual-assault-guilty-verdict/ (discussing general officer’s decision to overturn sexual assault conviction).

8. Karen Parrish, “Officials Explain New Sexual Assault Policies,” Am. Forces Press Serv. (April 25, 2012), www.af.mil/News/Article-Display/Article/111299/officials-explain-new-sexual-assault-policies/. 

9. National Defense Authorization Act for Fiscal Year 2012, Pub L. No. 112-81, sec. 581, § 1565b(a), 125 Stat. 1298, 1431 (2011) (hereinafter FY 2012 NDAA).

10. Rich Lamance, “Air Force to Provide Dedicated Legal Counsel to Sexual Assault Victims,” A.F. News Serv. (Jan. 7, 2013), www.afpc.af.mil/News/Article/422101/air-force-to-provide-dedicated-legal-counsel-to-sexual-assault-victims/.

11. Colonel Louis P. Yob, “The Special Victim Counsel Program at Five Years,” Army Law., No. 1, 2019, at 67.

12. L.R.M. v Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013) (“The military judge erred by determining at the outset of the court-martial, during arraignment proceedings and before any (Military Rule of Evidence (M.R.E.)) 412 or 513 evidentiary hearings, that LRM would not have standing to be represented through counsel during applicable hearings arising from the M.R.E.”).

13. 10 U.S.C. § 832(d)(3) (2021).

14. National Defense Authorization Act for Fiscal Year 2014, Pub L. No. 113-66, sec. 701, § 806b, 127 Stat. 672, 952-54 (2013).

15. See, e.g., U.S. Dep’t of A.F., Instr. 51-207, Victim and Witness Rights and Procedures, paras. 3.2.2.2, 3.2.2.3 (Oct. 3, 2024) (outlining victim eligibility for VC representation).

16. See id., para 3.5 (“The VC has an ethical obligation to advocate for the expressed interests of the client, even if in conflict with what the VC or a third party believes is in the best interests of the client.”).

17. Id. 

18. Manual for Courts-Martial, United States, R.C.M. 1001(c)(5) (2024).

19. 10 U.S.C. § 806b(e)(1) (2024).

20. FY 2012 NDAA, supra note 9, at sec. 581, § 1565b(b).

21. Restricted Reporting, Dep’t of Def. Sexual Assault Prevention & Response Off., https://sapr.mil/restricted-reporting (last visited Sep. 24, 2025). Victims may also enter the Catch a Serial Offender (otherwise known as “CATCH”) Program, which notifies victims if their alleged offender is named in a separate law enforcement investigation, and may convert a restricted report to an unrestricted report at any time. Id.

22. The Army Resilience Directorate, DOD: Safe-To-Report Policy Protects Survivors (Jan. 14, 2022), www.army.mil/article/253284/dod_safe_to_report_policy_protects_survivors_from_being_disciplined_for_minor_collateral_misconduct.

23. 10 U.S.C. § 824a (2024).

24. Fiscal Year 2024 Annual Report, supra note 1, at 4 (“Special Victims’ Counsel programs remain one of the highest rated, most used services offered to warfighters coping with an experience of sexual assault.”). Of note, “Department-wide surveys have noted a decrease in satisfaction since 2018 associated with services provided to Service members, with victim satisfaction reaching a new low in 2023.” Id.

25. See Exec. Order No. 14062, 87 Fed. Reg. 4763, 4784-86 (Jan. 26, 2022) (establishing sexual harassment as an article in the Uniform Code of Military Justice).

26. See Tom Jackman, “Army Ranger Accused of Raping, Assaulting Women,” Wash. Post (June 9, 2025), www.washingtonpost.com/national-security/2025/06/09/army-ranger-rape-trial/ (victims represented by civilian attorney).

27. Fiscal Year 2024 Annual Report, supra note 1, at 4-5 (footnote omitted).