STATEMENT: Internal Pentagon Conflict Hinders Sexual Assault Victims’ Rights
**A copy of Air Force LTC Joshua Kastenberg’s US v. Daniels, USAF decision and other cases mentioned in the statement are available for download, by clicking here:
FOR IMMEDIATE RELEASE
April 10, 2013
Contact: Brian Purchia, , brian@protectourdefenders.com
*** STATEMENT ***
INTERNAL PENTAGON CONFLICT HINDERS SEXUAL ASSAULT VICTIMS’ RIGHTS
Washington DC – New legal attacks from all branches of the military are denying victims of sexual assault their fundamental rights — highlighting yet again the broken system of military justice. A military judge, Air Force LTC Joshua Kastenberg in US v. Daniels, USAF, recently ruled that a victim of sexual assault does not have the right to be represented in court by legal counsel. And last Tuesday, a three judge panel (consisting of Col Bradley Roan, Col Peter Marksteiner and Lt Col Karen Hecker) of the Air Force Court of Criminal Appeals (AFCCA) refused to even consider whether the victim in the case had the due process right to be represented by counsel.
The Air Force currently stands alone in allowing victims’ access to their own legal counsel, with a new program called theSpecial Victims Counsel (SVC). But, the US Army’s, Navy’s, Coast Guards’, and Marines’ appellate defense offices have all filed briefs in opposition, standing against the Air Force in asserting these rights on behalf of victims.
Today, Protect Our Defenders President Nancy Parrish released the following statement.
“Victims of rape and sexual assault in the military are once again being denied fundamental rights – including the right to be heard and the right to safeguard their privacy and dignity, based on two new United States Air Force court decisions.
Congress has affirmatively spoken on the right of service members who are victims of sexual assault to legal counsel through the passage of s1565b of the National Defense Authorization Act (NDAA). Yet time and again the military court system has not consistently recognized this right. In the wake of the ongoing sexual abuse scandal at Lackland Air Force Base, the Air Force recently took a strong step to shield victims from a harsh military justice system by creating a pilot project, the Special Victims Counsel (SVC) program. This new effort assigns an attorney to represent victims of sexual assault and protect their constitutional and procedural rights. Unfortunately, an Air Force judge is preventing this new program from effectively protecting victims.
Air Force LTC Joshua Kastenberg, the military judge in US v. Daniels, USAF, has ruled a victim doesn’t have the right to be represented in court by legal counsel. The judge would not allow the SVC to represent this courageous victim in an effort to protect her privacy. The judge denied her the rights and due process afforded by Congress and the Air Force – and thus deprived her of any real protection in court.
Judge Kastenberg’s decision prevented the SVC from asserting the victim’s right to obtain documents that could be used against her in court. This includes possible sensitive documents pertaining to the victim’s sexual history and mental health, under Military Rules of Evidence (MRE) 412, 513 and 514, which are designed as ‘rape shield’ laws. The military judge inDaniels ruled that the victim’s counsel lacked ‘standing’ – in other words, the judge ruled that the victim doesn’t have the right to be represented by legal counsel (the SVC) in court, and doesn’t have the right to obtain court documents (motions and answers) relevant to the judge’s rulings under MRE 412, 513 and 514.
Judge Kastenberg refused to apply case law that allows for similar representation of third parties, including a news organization’s right to be heard at court. His ruling means that a victim has less protection at trial than a journalist covering that same case. In the three months that the SVC program has been in existence, some other Air Force judges have refused to allow victims to be represented by SVC. In the Army where there is no SVC program, judges have also refused to allow privately retained counsel from representing victims in court.
Victims need legal counsel to protect their privacy rights concerning their sexual history and mental health records. Judge Kastenberg’s ruling completely eviscerates the SVC program and once again leaves victims alone, without representation in court and therefore unprotected.
The victim in US v. Daniels, USAF, bravely stood up to the system and appealed the judge’s order denying her the right to counsel.
Last Tuesday, a three judge panel (consisting of Col Bradley Roan, Col Peter Marksteiner and Lt Col Karen Hecker) of the Air Force Court of Criminal Appeals (AFCCA) refused to even consider whether this victim had the due process right to be represented by counsel. The AFCCA in L.R.M. v Kastenberg, USAF (SVC appeal to the Daniels court decision) ruled that it did not have jurisdiction to even hear the case thereby once again denying relief to victims of military sexual assault.
The Military Rules of Evidence expressly gives a victim of sexual assault the right to be heard at trial on MRE 412, 513 and 514 issues, and the Air Force created the SVC program to provide an attorney to represent the victim in court. However, these rights and entitlements mean nothing when trial courts prevent the SVC from representing the victim, and appellate courts refuse to hear the victim’s appeal. Without a remedy, the rights afforded to victims are not rights at all.
The Air Force currently stands alone in allowing victims’ access to their own legal counsel. The US Army’s, Navy’s, Coast Guards’, and Marines’ appellate defense offices filed briefs in opposition, standing against the Air Force in asserting these rights on behalf of victims. It appears that military defense counsels, as a whole, would like the victim to be an unprotected target. This is contrary to our American justice system. Our service men and women deserve better.
In these recent decisions, the military courts have gutted the effectiveness of the special victims counsel and have prevented victims from obtaining a remedy before the courts. Under these judicial rulings, SVC cannot effectively protect the rights and privacy of victims.
AFCCA in its Kastenberg opinion punted to Congress, the President, and the Department of Defense. The Air Force and Department of Defense should support an immediate appeal to the United States Court of Appeals for the Armed Forces (CAAF). Additionally, either the President through executive order, or Congress through legislation, should clarify victims’ rights, including the right to be represented in court. To insure that the Crime Victims Rights Act unequivocally applies to military courts-martial and to expressly provide jurisdiction for AFCCA so that victims of sexual assault can finally be heard, our elected and military leaders must act with haste and promptly end this travesty of justice.
As a first step, this issue needs clear and decisive leadership from our Secretary of Defense. The military must stop fighting with itself over whether or not victims have the right to due process and privacy.
Victims of military sexual trauma do not deserve to be victimized again by a broken military justice system. Congress, the President, and the Department of Defense each have the power to fix this tragic situation. They should act now. Every day this epidemic of military sexual assault grows, victims are being abused and re-victimized by the broken military justice system. This must be stopped.”
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Air Force to provide dedicated legal counsel to sexual assault victims
http://www.af.mil/news/story.
UPI: Hagel calls for rape reform in military
http://www.upi.com/Top_News/
Washington Post: Air Force general’s reversal of pilot’s sexual-assault conviction angers lawmakers
http://www.washingtonpost.com/
New York Times: Hagel to Open Review of Sexual Assault Case
http://www.nytimes.com/2013/
Wired Magazine: Air Force’s Accountability for Sexual Assault: Not Promoting Convicted Officer
http://www.wired.com/
NBC News: Civil Rights Commission urged to order audit of military sex-assault cases
http://usnews.nbcnews.com/_
About Protect Our Defenders: Protect Our Defenders is a human rights organization. We seek to honor, support and give voice to the brave women and men in uniform who have been sexually assaulted while serving their country, and re-victimized by the military adjudication system – a system that often blames the victim and fails to prosecute the perpetrator. Learn more about Protect Our Defenders at www.protectourdefenders.com or on Facebook at http://facebook.com/
Protect Our Defenders partners with Attorney Susan Burke, Burke PLLC to advance lawsuits filed against the DoD and service academies for repeatedly ignoring rape, sexual assault and harassment, failing to prosecute perpetrators and retaliating against the victim.
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