Victims’ Rights, Special Victims’ Counsel, and What the Accused Should Know
Key takeaways
- Article 6b, added by the 2014 NDAA after LRM v. Kastenberg, mirrors the federal Crime Victims’ Rights Act and applies to anyone who suffered direct physical, emotional, or pecuniary harm from a UCMJ offense.
- Victims of sex-related offenses (Articles 120, 120a, 120b, 120c, and attempts) are entitled to a Special Victims’ Counsel under 10 U.S.C. § 1044e — an independent attorney representing the victim’s interests, not the prosecution’s.
- Article 6b(e) lets a victim petition the Court of Criminal Appeals for a writ of mandamus when rulings under M.R.E. 412, 513, 514, or 615 allegedly violate their rights — enforcement with teeth.
- Defense interviews of a represented victim must be requested through the victim’s counsel, and the victim may insist on counsel’s presence. Art. 6b(f).
- Victims may be heard at presentencing by sworn or unsworn statement — and an unsworn victim statement is not evidence and cannot be cross-examined.
The Article 6b rights catalog
Congress rebuilt the victim’s position in military justice in a single decade. After the federal Crime Victims’ Rights Act (18 U.S.C. § 3771) set the model, and after CAAF’s decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) recognized a victim’s right to be heard through counsel, the 2014 NDAA wrote the rights directly into the code as Article 6b. A “victim” is anyone who suffered direct physical, emotional, or pecuniary harm from a UCMJ offense; guardians and representatives step in for minors and incapacitated victims. Art. 6b(b)–(c).
The catalog, closely tracking the CVRA:
- the right to be reasonably protected from the accused;
- reasonable, accurate, and timely notice of pretrial confinement hearings, the Article 32 preliminary hearing, the court-martial, clemency and parole proceedings, and the accused’s release or escape;
- the right not to be excluded from public proceedings, unless the judge finds by clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony;
- the right to be reasonably heard at confinement, sentencing, and clemency and parole proceedings;
- the reasonable right to confer with government counsel;
- the right to restitution as provided in law;
- proceedings free from unreasonable delay; and
- treatment with fairness and respect for dignity and privacy.
Army regulation adds notice-and-consultation machinery on top: victims are consulted on decisions not to prefer, pretrial restraint, dismissal, and plea negotiations — though the victim’s preference is considered, not controlling; disposition remains the command’s call. AR 27-10, ch. 17; Art. 6b(d). Since the MJA 2016, these rights extend even into the summary court-martial.
Special Victims’ Counsel: who gets one and what they do
The Special Victims’ Counsel (Army/Air Force) or Victims’ Legal Counsel (Navy/Marine Corps) program, created by 10 U.S.C. § 1044e, provides victims of sex-related offenses — Articles 120, 120a, 120b, 120c, and Article 80 attempts — with their own military attorney, free of charge. Eligible victims must be told of the right to consult an SVC before being interviewed by investigators, trial counsel, or victim advocates, and may decline representation.
The SVC is neither prosecutor nor advocate-counselor. The attorney-client relationship is real and privileged (M.R.E. 502), and the SVC’s duty runs to the victim’s interests — which sometimes align with the government’s and sometimes sharply do not. SVCs advise on reporting options, accompany the client to interviews, assert privileges, litigate M.R.E. 412 and M.R.E. 513 issues, advocate on expedited transfers and retaliation complaints, and speak for the client on pleas, dispositions, and at presentencing.
Standing and enforcement: writs under Article 6b(e)
What separates Article 6b from aspirational victim-rights statements is its enforcement clause. If a victim believes a ruling by the military judge or the Article 32 preliminary hearing officer violates rights under M.R.E. 412, 513, 514, or 615 — or orders the victim into a deposition — the victim may petition the Court of Criminal Appeals for a writ of mandamus, with priority handling. Art. 6b(e). This is CVRA-style enforcement transplanted into courts-martial, and it operates even before referral.
The doctrinal foundation is LRM v. Kastenberg, where CAAF held:
“a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel.”LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013)
The appellate boundaries have their own case law: CAAF initially held Article 6b writs ended at the CCA (EV v. United States, 75 M.J. 331 (C.A.A.F. 2016)), and that the accused could not appeal a victim’s writ win either (Randolph v. HV, No. 16-0678 (C.A.A.F. 2017)) — before the 2018 NDAA amended Article 6b to give CAAF priority review of CCA writ decisions. And the writ has limits: it requires an actual ruling — a pre-preferral discovery dispute does not qualify (AG v. Hargis, 77 M.J. 501 (A. Ct. Crim. App. 2017)), and the right not to be excluded is not a right to the parties’ filings (A.M. v. United States (N-M. Ct. Crim. App. 2017)).
How victim counsel participates in the case
| Stage | Victim’s right / counsel’s role | Key authority |
|---|---|---|
| Investigation | SVC consultation before interviews; counsel present at law-enforcement interviews | 10 U.S.C. § 1044e; AR 27-10 |
| Defense interviews | Requests go through the victim’s counsel; victim may require counsel’s presence | Art. 6b(f); R.C.M. 701(e)(1) |
| Article 32 | Notice; presence; no obligation to testify; exclusion only during other victims’ M.R.E. 412/513/514 matters | R.C.M. 405(g), (h)(2)(A)(iii) |
| Motions practice | Standing to be heard through counsel on M.R.E. 412, 513, 514 privilege and exclusion issues | LRM; Art. 6b(e) |
| Pleas & disposition | Consultation on agreements; views considered by the convening authority; venue preference (court-martial vs. civilian) solicited | R.C.M. 705(c); R.C.M. 306(e) |
| Trial | Right to attend under M.R.E. 615(e) absent clear-and-convincing findings | M.R.E. 615 |
| Presentencing | Right to be reasonably heard — sworn or unsworn victim-impact statement; unsworn is not cross-examinable | R.C.M. 1001(c) |
| Post-trial | Copy of the record; matters submitted to the convening authority; clemency and parole input | Art. 54(e); R.C.M. 1106A |
Note the sentencing details, because they surprise accused members: after findings, the victim may make a statement limited to victim impact and mitigation — not a sentence recommendation — and an unsworn statement cannot be cross-examined, only rebutted. R.C.M. 1001(c); United States v. Hamilton (C.A.A.F. 2019) (a victim unsworn statement is not evidence). Post-trial, victims get one opportunity to submit matters to the convening authority, on a 10-day clock. R.C.M. 1106A.
Expedited transfer and retaliation protections
Outside the courtroom, two protective systems shape the landscape. Expedited transfer lets a Soldier who files an unrestricted sexual assault report request reassignment away from the alleged offender; Army policy presumes approval after a credible report, and the approval authority must act within 72 hours. AR 614-200, para. 5-18. Retaliation protections run on several tracks at once: the punitive retaliation offense of Article 132, UCMJ (adverse personnel action, or withholding favorable action, with intent to retaliate against or discourage a report or protected communication); whistleblower reprisal channels through the Inspector General (10 U.S.C. § 1034); cruelty and maltreatment under Article 93; and command-policy prohibitions on ostracism. AR 600-20, paras. 5-13, 7-11. Commanders reviewing administrative separations of members who reported sexual assault must screen for retaliation before approving them.
For the accused, these systems matter tactically: an expedited transfer, a retaliation complaint, or a Military Protective Order becomes part of the case’s factual terrain — sometimes corroborating the account, sometimes revealing motive, timing, and secondary-gain issues that a careful defense must understand but handle with restraint and precision.
What this means if you’re the accused in a case with victim counsel
Expect a third lawyer at every stage — and adjust. Your defense counsel cannot simply call the complaining witness for an interview; the request goes through the SVC, the interview may be conditioned and attended, and every question is a preview of your theory. Evidence you consider central may be fought by the SVC under M.R.E. 412 or 513 before a panel ever hears it, and an adverse privilege ruling can be writ-tested mid-case. None of this makes a defense impossible; it makes an unprepared defense impossible. Retain counsel who has litigated against SVCs and built cases that survive three-party motions practice — and do it at the investigation stage, when the record is still being made.
What this means for the defense
Let us be direct about the framing: victims’ rights are the law, most of them are sound policy, and disparaging them wins nothing in front of a panel. What the accused needs is not resentment but realism about how the rights change the litigation:
- Discovery narrows. Access to the complaining witness runs through counsel; early defense theories must be built from documents, digital evidence, and third-party witnesses. Our guide to Article 32 witnesses and victims covers what the preliminary hearing can and cannot compel — including the victim’s statutory right not to testify there.
- Privilege litigation is front-loaded. M.R.E. 412 and M.R.E. 513 motions now draw three briefs, in-camera procedures, and writ exposure. The defense must paper constitutional theories early and precisely.
- Dispositions have three audiences. Victim views are solicited on plea agreements and considered by the convening authority — deals are built to survive that input.
- Sentencing needs a rebuttal plan. Unsworn victim statements arrive without cross-examination; the answer is disciplined factual rebuttal and a mitigation case prepared with equal care.
- The OSTC changed the prosecutor too. Since 2023, covered offenses are charged by the independent Office of Special Trial Counsel rather than the command — one more professionalized counterpart across the aisle in sexual assault cases.
Practitioner’s note
In our practice, we treat the SVC as a permanent fixture of the case map, and we have learned that professionalism pays: interview requests routed correctly and framed narrowly get granted more often than fishing expeditions; 412 and 513 motions that respect the rules’ structure survive writ review better than kitchen-sink filings. We also read the victim-rights record for what it tells us — transfer requests, collateral-misconduct deferrals, and consultation notes are discoverable threads that sometimes matter at trial. The defense that understands Article 6b better than the government does is the defense that stops being surprised by it.
Frequently asked questions
What rights does Article 6b give victims in a court-martial?
Eight core rights: reasonable protection from the accused; notice of confinement hearings, the Article 32, trial, and clemency proceedings; the right not to be excluded from public proceedings; the right to be reasonably heard at confinement, sentencing, and clemency stages; conference with government counsel; restitution; freedom from unreasonable delay; and treatment with fairness and respect for dignity and privacy.
Who gets a Special Victims' Counsel in the military?
Victims of sex-related offenses — generally Articles 120, 120a, 120b, and 120c and attempts — are entitled to a free, independent military attorney under 10 U.S.C. 1044e. Eligible victims must be told of the right before interviews by investigators or counsel, and may decline. The SVC represents the victim's interests, not the prosecution's.
Can the defense interview the alleged victim directly?
Not once counsel is involved. Under Article 6b(f), after the government signals it will call the victim, defense interview requests must go through the Special Victims' Counsel or other victim's counsel, and the victim can require that any interview happen only with government counsel, victim's counsel, or an advocate present.
Can a victim veto a plea deal or force charges in a court-martial?
No. Victims must be consulted on plea negotiations and their views considered by the convening authority, and they may express a preference between court-martial and civilian prosecution. But Article 6b expressly preserves the disposition discretion of commanders and, for covered offenses, the Office of Special Trial Counsel — the preference is considered, not controlling.
What can a victim do if a judge violates their rights?
Petition the Court of Criminal Appeals for a writ of mandamus under Article 6b(e) — available for rulings implicating M.R.E. 412, 513, 514, or 615, or orders compelling a deposition, with priority handling. Since the 2018 NDAA, CCA writ decisions get priority review at the Court of Appeals for the Armed Forces.
Does the alleged victim testify at the Article 32 hearing?
Only by choice. A victim named in a specification is not required to testify at the preliminary hearing, and declining is now routine. The victim retains the rights to notice and presence, though they are excluded during evidence offered under M.R.E. 412, 513, or 514 on charges naming other victims.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has spent more than 25 years defending Article 120 and false-allegation cases — the docket where Special Victims’ Counsel practice was born and where it is litigated hardest. A former Army prosecutor and defense counsel and the author of trial advocacy texts on cross-examination, he has tried courts-martial against SVC-supported prosecutions worldwide, building defenses that respect the rules of three-party litigation while holding the government to its burden at every stage from the Article 32 forward.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington and author of this guide, has defended sexual assault, domestic violence, and war crimes cases for over 20 years — the full span of the victims’-rights era, from before Article 6b existed through today’s SVC and OSTC landscape. Her motions practice in M.R.E. 412 and 513 litigation, honed across hundreds of contested hearings, reflects the guide’s core lesson: the defense that masters the victim-rights framework is the one it cannot ambush.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.