October 4, 2023

Historic Changes for Military Victims – But the Work is not Done

By Meg Garvin MA, JD, Mst

In late July, after a long and winding road that included much study, debate, and legislative negotiation, President Biden signed an executive order that creates one of the most significant changes to military justice since the creation of the Uniform Code of Military Justice in 1950.  

Instead of decision-making regarding whether to try and charge a service member resting with commanders, the executive order gives that authority for certain crimes to a group of experienced and independent military prosecutors – The Offices of Special Trial Counsel (OSTC).

Covered offenses include sexual assault, domestic violence, child abuse, murder, manslaughter and kidnapping, among other crimes. The shift is designed, in part, to ensure a fair process for both the accused and the victim, which in turn will bolster community trust in the system.  

There is no doubt that this step is critical in the fight for a fair and just process. This step should not, however, eclipse other work that has to continue on behalf of victims.  

Military victims are entitled to numerous rights known as “Article 6b Rights.” These rights, which are akin to those in the civilian system, include notice, conferral, presence, opportunity to be heard and more.  

Unfortunately, the full meaning and scope of these rights is unknown. The Court of Appeals for the Armed Forces continues to hold that it lacks jurisdiction to review petitions for writ of mandamus brought by a victim. 

A recent decision demonstrates the impact of this. M.W. Appellant v. UNITED STATES and ROBINSON, No. 23-0104 Crim. App. No. 2022-15. 

In the case, counsel for M.W. (the named victim), exercised the client’s right to confer by communicating with trial counsel about voir dire.  The military judge ruled that this communication constituted unlawful influence and prohibited challenges by the Government to any of the members detailed to the court-martial.  

Both M.W. and the Government contested the military judge’s ruling by petitioning the United States Air Force Court of Criminal Appeals (AFCCA) for writs of mandamus. AFCCA ruled on the government’s petition but denied the victim’s petition.  

This left M.W., as well other victims in the military, with utter lack of clarity of whether, how, and when their counsel can communicate with trial counsel in exercise of the right to confer. 

In an effort to gain clarity, M.W. sought further review at CAAF, yet CAAF denied the writ, ruling it lacked jurisdiction to review the case.  

Clearly, there is more work to be done. 

Rights are meaningless when appellate review is absent. This is because every decision of every lower court can essentially stand unchallenged. 

Full appellate review of military victims’ rights is critical to ensuring the change Congress sought. Let’s work to ensure the next Defense Authorization Act contains a true fix.