Court-Martial Trial Practice Blog
A DoD report is critical of progress regarding sexual assault in the military. Overall the report seems a fair response. This part however is troubling:
Included in the task force’s 30 primary recommendations are a number of actions for helping victims of sexual assault, such as a suggestion that legislation be enacted requiring the Uniform Code of Military Justice to include a comprehensive provision on privileged communications between victims of sexual assault and victim’s advocates.
The task force interviewed service members who reported being re-victimized when their previous statements to medical personnel and victim’s advocates were used to cross-examine them in courts-martial.
This suggestion continues the move toward prohibiting cross-examination of a complaining witness at court-martial. Before long they will have a rule that says you can’t cross-examine a complaining witness about false, incomplete, or inconsistent statements made to investigators or at an Article 32, UCMJ, investigation.
The suggestion also mischaracterizes the advocates role in the proceedings. Or perhaps it does reflect the reality — that most so-called advocates are merely adjunct trial counsel not in disguise. Perhaps they should be included as part of the prosecution team, then we can exclude them from supposedly private interviews with complaining witnesses.