Law on Victim’s Rights in the Military

Military Sexual Assault Survivor Rights


Saum v. Widnall, 912 F. Supp. 1384 (D. Col 1996)

A female Air Force Academy cadet sued the Secretary of the Air Force and others seeking declaratory and injunctive relief based on alleged sexual harassment during training, in violation of her due process and equal protection rights. The alleged harassment included a videotaped simulated “rape and exploitation” scenario as part of SERE (survival, evasion, resistance, and escape) training, during which she received injuries requiring medical attention. As part of her requested relief, the plaintiff sought a declaratory judgment that she is a “crime victim” as defined by the Victims’ Rights and Restitution Act of 1990 and DoD 1030.2.

Court Martial242 Gonzalez &Amp; Waddington - Attorneys At LawThe Air Force argued that her claim should be dismissed because there is no private right of action under the Victims Rights Act. The court found that argument “without merit,” and denied the Air Force’s motion to dismiss. Although the court determined that the government “is not required to do anything under the Victims’ Rights Act in the absence of an ongoing criminal investigation,” if the Air Force was required to have launched such an investigation under the circumstances presented, Cadet Saum may be entitled to relief. Cadet Saum and the Air Force settled the case and it was dismissed with prejudice in 1997. Saum v. Widnall, 959 F.Supp. 1310 (D. Col. 1997).

United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003)

CAAF overturns 53 years of precedent and holds that it will no longer follow a policy of abatement ab initio for appellants who die following a review by the intermediate service courts but prior to final review by the Court of Appeals for the Armed Forces. The rationale for overturning the abatement policy rested on two grounds: first, even after the death of a military defendant “there remains a substantial punitive interest in preserving otherwise lawful and just military convictions”; and second, the impact of abatement ab initio on victims’ rights, and, in particular, the issue of restitution as a condition of a pretrial agreement, reduced sentence, clemency, or parole. “Particularly where there has been one level of appeal of right, abatement ab initio at this level frustrates a victim’s legitimate interest in restitution and compensation.”

United States v. Spann, 51 M.J. 89 (C.A.A.F. 1999)

The Victim Rights and Restitution Act of 1990, and the Victim Rights Clarification Act of 1997, amending F.R.E. 615, did not apply to the military prior to the dates those changes would automatically become effective under Mil. R. Evid. 1102 (18 months after the effective date in the federal system). As it happens, the President enacted changes to Mil. R. Evid. 615, effective 15 May 2002 (adding subparts 4 and 5, discussed above), which differed somewhat from the F.R.E. amendment.

United States v. Lundy, 60 M.J. 52 (2004)

Accused entered into PTA term, whereby the CA agreed to defer any and all reductions and forfeitures until the sentence was approved and suspend all adjudged and waive any and all automatic reductions and forfeitures. For Military Sex Crimes, sexually assaulting his children, the Accused (a SSG) was sentenced to a DD, confinement for 23 years, and reduction to E-1, which subjected him to automatic reduction and forfeitures. The CA attempted to suspend the automatic reduction IAW the PTA to provide the Accused’s family with waived forfeitures at the E-6, as opposed to the E-1, rate. The parties, however, overlooked AR 600-8-19 which precludes a CA from suspending an automatic reduction unless the CA also suspends any related confinement or discharge which triggered the automatic reduction.

ACourt Martial236 Gonzalez &Amp; Waddington - Attorneys At LawCCA stated no remedial action was required because the Accused’s family was adequately compensated with transitional compensation (TC), which ACCA concluded the Accused’s family was not entitled to because they were receiving waived forfeitures, albeit at the E-1 rate. The CAAF, in reversing, held if a material term of a PTA is not met by the government three options exist: (1) the government’s specific performance of the term; (2) withdrawal by the accused from the PTA, or (3) alternative relief, if the accused consents to such relief. Additionally, the CAAF held an Accused’s family could receive TC while receiving either deferred or waived forfeitures if the receipt of TC was based on a discharge and if the receipt of TC was based only on the Accused receiving forfeitures, the family could receive TC if not actively receiving the deferred or waived forfeitures. Case remanded to determine if the Gov’t could provide specific performance.

United States v. Bright, 44 M.J. 749 (C.G. Ct. Crim. App. 1996)

Appellant was convicted of larceny of BAH and false official statements. Appellant’s wife submitted an adverse letter to the convening authority, purportedly “in the spirit of the DoD Victim and Witness Assistance Program implementing the Victims’ Rights and Restitution Act of 1990.” Appellant contended on appeal that his estranged wife was not an Article 120 UCMJ “victim” in any sense of the word as it is defined in the relevant victim rights statutes. The court held that, while the appellant may be correct, the convening authority was permitted to consider the letter upon some other basis, so long as the appellant was notified properly by the SJA addendum. Further, the court held that although there may be limits to what the convening authority could consider, by failing to challenge the appropriateness of the letter at the time it was served upon him, the appellant waived the issue.

United States v. Ducharme, 59 M.J. 816 (N-M. Ct. Crim. App. 2004)

Appellant was tried in July 1999, prior to the effective date of changes to MRE 615 permitting sentencing witnesses to observe trial on the merits (the effective date of those changes is 15 May 2002). The court held that the military judge did not err when he ruled that, under Mil. R. Evid. 806 (control of spectators), one of the government’s sentencing witnesses (negligent homicide victim’s mother) could remain in the courtroom throughout the trial. In addition, under Mil. R. Evid. 615 as it existed at the time of appellant’s trial which required sequestration of witnesses upon request of either party, the trial defense counsel waived the issue. Finally, even assuming the military judge erred under Mil. R. Evid. 615 as it existed at the time of the appellant’s trial, any error was harmless.

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