NCVLI participated in this proceeding as amicus curiae in support of the victim's petition, arguing to protect the victim's right to be heard regarding the admissibility of her private information—whether through counsel or on her own behalf—at Military Rules of Evidence 412 and 513 hearings.  NCVLI has also filed an amicus brief in support of the victim's petition challenging the decisions of the military judge and the Air Force Court of Criminal Appeals, which is now pending before the United States Court of Appeals for the Armed Forces.

Airman First Class (E-3) LRM v. Lieutenant Colonel Kastenberg, No. 2013-05, 2013 WL 1874790 (A.F. Ct. Crim. App. Apr. 2, 2013) (order).

Defendant—real party in interest in the proceeding and a male Airman—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 requires the appointment of counsel for victims of sexual assault.  The victim was appointed SVC, who entered a formal appearance and asked the military judge to direct the parties to provide him with copies of motions filed under Military Rules of Evidence 412 (the military's rape shield law), 513 (psychotherapist-patient privilege), and 514 (victim advocate-victim privilege).  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.  In making this request, SVC acknowledged that the victim is not a party to the case, but contended that she had standing to participate in the proceeding regarding any issues that implicated her rights under Rules 412, 513, and 514.  The government did not object to the victim being heard, either personally or through counsel, on factual matters, but argued that neither the victim nor SVC had the right to file motions or make legal arguments before the court.  Defendant argued that the victim and SVC lacked standing to be heard and that permitting SVC to present legal arguments would unfairly burden the defense and create "an appearance problem."  The military judge held that the victim had no standing to move for copies of motions, to be heard through SVC, or to seek any exclusionary remedy during any portion of the trial.  The military judge further held that the victim was only authorized to be heard personally, through counsel for the government in pretrial hearings, or—in the event she became incompetent—through a guardian, representative, or conservator.  The military judge explained that "to hold otherwise would make [the victim] a 'de facto party' to the court-martial, with a degree of influence over the proceedings akin to a private prosecution, which is antithetical to American criminal law jurisprudence."

Appellate SVC filed a petition with the Air Force Court of Criminal Appeals for a writ of mandamus directing the military judge "to provide an opportunity for [the victim] to be heard through counsel at hearings conducted pursuant to [Mil. R. Evid.] 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in hearings under [Mil. R. Evid.] 412 and 513."  Upon review, the court did not reach the substantive merits of the victim's petition, holding that the All Writs Act did not give the appellate court the authority to issue a writ of mandamus "regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial."  After observing that "issues relating to the SVC program would benefit greatly from review by the services' military justice officials, as well as the Joint Service Committee on Military Justice, to consider potential modifications to the Manual or instructions to trial judges regarding the implementation of the SVC program in the court-martial system," the court denied the victim's petition for a writ of mandamus and vacated its stay of the underlying court-martial proceedings.

© 2013 National Crime Victim Law Institute.  For reprint permissions and information, please send your inquiry to ncvli@lclark.edu.

A PDF of this order can also be found here.