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PRO-BONO ATTORNEY TRAINING MANUAL Representing Victims of Military Sexual Violence in the Investigation and Prosecution of the Perpetrator

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PRO-BONO ATTORNEY TRAINING MANUAL Representing Victims of Military Sexual Violence in the Investigation and Prosecution of the Perpetrator PRO-BONO ATTORNEY TRAINING MANUAL Representing victims of military sexual violence in the investigation and prosecution of the perpetrator JANUARY 2020 Protect Our Defenders (POD) is the We seek reform to ensure all only national organization solely survivors and service members dedicated to ending the epidemic of are provided a safe, respectful rape and sexual assault in the military work environment and have access and to combating a culture of pervasive to a fair, impartially administered misogyny, sexual harassment, and system of justice. retribution against victims. We honor, Protect Our Defenders provides support, and give voice to survivors free legal and other assistance for of military sexual assault and sexual military sexual assault survivors, harassment – including service including active-duty service members, veterans, and civilians members, veterans, and civilians. assaulted by members of the military. TABLE OF CONTENTS QUICK REFERENCE: ACRONYMS AWOL Absence Without Leave 1 What is Military Sexual 11 Options for How a Victim CA Convening Authority Violence? Can Report a Sexual Assault CAAF The United States Court of Appeals for the Armed Forces 2 Rates of Military Sexual 12 How Policy Changes Have FOIA Freedom of Information Act Violence Impacted How Military GCM General Court-Martial Sexual Assault Cases Move GCMCA General Court-Martial 3 How Victims Find and Forward Convening Authority Engage POD JAG Judge Advocate General 14 Step By Step Actions to MPO Military Protection Order Take, Timeline, and Time 3 The Role of Attorneys in MRE Military Rules of Evidence Commitment the Military Justice System MST Military Sexual Trauma NDAA National Defense 6 Overview of Military Justice 19 Special Issues Authorization Act System PHO Preliminary Hearing Officer 19 Dealing with Military SPCM Special Court-Martial Judges 9 Legal Authority — “Rules of SPCMCA Special Court-Martial the Road” Convening Authority 20 Sample Engagement Letter SVC The Special Victims’ Counsel UA Unauthorized Absence UCMJ Uniform Code of Military Justice VLC Victims’ Legal Counsel WHAT IS MILITARY SEXUAL VIOLENCE? Military sexual violence is when a member of any branch of the armed services (Army, Navy, Air Force, Marine Corps, Coast Guard, or National Guard), who is active duty or reserve (not engaged in full-time active duty service), sexually assaults or pervasively sexually harasses another person, either a fellow member of the armed services, a Department of Defense (DoD) civilian employee, or a civilian. Your client may be active duty, reserve, veteran, DoD civilian employee, or a civilian not employed by the military. Public awareness has been heightened about the impact Furthermore, the ethos and culture of the military of sexual violence on the survivors with the advent of the promotes and requires trust in and between its members. #MeToo movement. Much like the stories we have heard The job functions literally can require life or death decision- about the dynamics of sexual violence in the entertainment making and an enduring commitment to “having each and business industries, the perpetrators often have other’s back.” Moreover, the military is consistently voted — and exploit — much higher levels of influence, control, the most admired institution in America. and command. This dynamic exists in the military, where Consequently, sexual assaults committed by service the command level, rank, length of service, and assigned members are a particularly shocking violation of trust duty is explicitly stated and enforced as an integral part from the survivors’ perspective. In addition to this sense of of the military structure. betrayal, there is additional fear and distrust because the One of the unique and particularly troubling aspects of command structure that is in place to ensure order and sexual violence in the military is that the perpetrator and discipline is the same command structure that is tasked the victim not only often work together, but often live in with investigating and prosecuting the crime. This “double very close proximity to each other (on the same base, in the duty” of the commander can create innate conflicts of same unit*, maybe even in the same barracks/ship, etc.). interest, which we will discuss more fully below. * Each branch of the military has its own terms for If your client is a veteran and the military sexual violence its ranks, roles, and structures. When you first happened while s/he was active duty or reserve, there are meet with your client, ask him/her to give you a quick briefing on their particular branch. It will many ways in which the military sexual violence can and go a long way toward building trust that you are must be taken into consideration by: an administrative interested in learning the unique terminology process within the branch in which your client served and culture of that branch. There are also some great online “courses” that will give you a good regarding discharge level if your client received a discharge overview of military culture and norms. at a lower level that s/he feels was warranted; and by the US Department of Veterans Affairs (VA) in determining the The Veteran 101: Service Branch Overview can be viewed here. disability rating received by your client from the VA. What is Military Sexual Violence? Military Justice System Overview Step by Step Actions & Timeline Rates of Military Sexual Violence Legal Authority Special Issues How Victims Find and Engage POD Victim Reporting Options Military Judges Roles of Attorneys Impacts of Policy Changes PRO-BONO ATTORNEY TRAINING MANUAL 1 Both the discharge and disability rating have a direct correlation to whether your client is eligible for any For an overview of how the VA benefits, the amount of monetary support and/or retirement defines Military Sexual Trauma benefits they may receive, and whether your client can (MST) and the services available to victims of MST, click here. receive physical and mental health care from the VA. The military and the VA use the term Military Sexual Trauma (MST) to refer to sexual offenses that occur against * Those other organizations rely heavily on pro bono attorney assistance as someone in the military (active duty or reserve). If your well, so you could continue to represent your client in those matters with client needs help with their history of MST, their discharge the training and mentorship of those organizations. level or any issues with the VA, please contact Protect Our For additional information on the ways that survivors of MST have Defenders (POD) and we will connect your client to other experienced long-lasting impact on their careers, financial stability, organizations that specialize in those legal areas.* and ability to access assistance from the VA, click here. RATES OF MILITARY SEXUAL VIOLENCE Annually, the U.S. Department of Defense (DoD) — which oversees all branches of the military except the Coast Guard — is required by Congressional mandate to issue a report to Congress reporting on the rates of sexual assault, and other relevant data points, for each branch of the military. The DoD Sexual Assault Prevention and Response (SAPR) POD works to educate the public and policymakers on is responsible for collecting the data and issuing the the crisis of sexual violence in the military. POD’s policy annual SAPR report. POD analyzes that data and priorities to create systemic change are enumerated here. makes its easily accessible through its website. Many of the improvements to the system in which you will be representing your client can be attributed to the Despite consistent attention to the issue of military advocacy of POD. sexual violence at the DoD level since the Tailhook scandal of the early 1990s (and some would even say For a well-articulated overview of the challenges facing before then), the rates of sexual violence remain survivors of military sexual violence, read this law review pervasive and alarmingly high. article, Protecting Our Defenders: The Need to Ensure Due Process for Women in the Military Before Amending the Selective Service Act, Kelsey L. Campbell, Hastings Constitutional Law Quarterly, Vol. 45, No. 1, Fall 2017. What is Military Sexual Violence? Military Justice System Overview Step by Step Actions & Timeline Rates of Military Sexual Violence Legal Authority Special Issues How Victims Find and Engage POD Victim Reporting Options Military Judges Roles of Attorneys Impacts of Policy Changes PRO-BONO ATTORNEY TRAINING MANUAL 2 HOW VICTIMS FIND AND ENGAGE POD Most survivors of military sexual violence who contact POD have learned about POD through word-of-mouth from fellow service members, from Congressional offices, or from internet searches. All potential clients are asked to complete an on-line For the cases that fall within POD’s area of service, our intake form prior to a representative of POD speaking intake staff then speak with the survivor by phone to get a with them. Through that intake form we are able to gather more thorough understanding of the facts. In consultation important information such as: their branch of service and with POD’s President, Col. (Ret.) Don Christensen, former rank (or civilian status) of the survivor, the branch and chief prosecutor for the Air Force and military judge, POD rank of the perpetrator, the status of the investigation and determines whether a case is appropriate for placement court martial proceeding, and what issues they are facing. with a pro bono attorney. Our staff, Don, and other experts who are associated with POD (some long-term pro bono attorneys) are available to mentor you and provide you with advice and consultation throughout your representation of the client. THE ROLE OF ATTORNEYS IN THE MILITARY JUSTICE SYSTEM THE SPECIAL VICTIMS’ COUNSEL (SVC)/VICTIMS’ LEGAL COUNSEL (VLC) Starting in 2012, the Air Force led the military in establishing the Special Victims’ Counsel * The United States Court of Appeals for (SVC) program.
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