But, What About the Victim?

US Navy 040719-N-2101W-001 USS Kitty Hawk (CV ...

If they can build and maintain this behemoth, wouldn't you think they could get victim advocacy right? Image via Wikipedia

But, what about the victim?

I hear the question all the time when I represent a service member who is charged/convicted of misconduct that involves a human object of the crime. It arises in typical fashion after I advocate particularly hard on some issue involving my client. I must remind the asker that my duty is to represent the interests of my client, and that a multitude of others are charged with holding the tissue box of the (alleged) victim. These others include prosecutors, paralegals, investigators, special agents, and victim advocates. The latter, in particular, are responsible for handling all needs and wants of the alleged victim. Why do they insist upon asking why I’m not chipping-in my support? I have great confidence in the caring abilities of the prosecutorial/victim advocate team.

Perhaps my confidence is misguided or misplaced.

The Stars and Stripes (the international US Armed Forces news service) reported this year on a case involving a Navy Officer (Physician) and subsequently analyzed by the folks at CAAFlog.com.

At least 23 women had alleged that [Lieutenant Commander Anthony] Velasquez sexually violated them after they sought medical treatment in two locations, at Japan’s Naval Air Facility Atsugi branch clinic in 2007 and 2008 and Kuwait’s Camp Arifjan clinic between December 2008 and June 2009.

23 is a remarkable  number, and the allegation of sexual assault is a serious allegation. Assuming all 23 are truthful and correct in their assertions, they all bear lifelong scars from Lt. Cmdr. Velasquez’s actions. Naturally, the prosecution will move carefully to craft charges and begin the action, and the defense will move deftly to deflect the pain or minimize it. Here’s how it went, in a nutshell:

On May 26, Velasquez pleaded guilty at a Yokosuka Naval Base court-martial to two counts of wrongful sexual contact and two counts of conduct unbecoming an officer. In exchange for those guilty pleas, under the terms of a pretrial plea agreement negotiated between the Judge Advocate General’s Office and the defense, prosecutors dropped 29 other counts of sexual misconduct and related charges leveled against Velasquez by his former patients.

Military judge Cmdr. David Berger sentenced Velasquez to two years in prison, a $28,000 fine, dismissal from the Navy and forfeiture of all pay and allowances, but the convening authority suspended the prison sentence and fine in accordance with the pretrial agreement. Instead, Velasquez spent just seven days in the Yokosuka Naval Base brig.

OK, so he pled guilty and got a bit of punishment. Most important from a Military Justice perspective, he was dismissed from the military (dishonorable discharge) and caused to be a registered sex offender. In turn, the deal spared him a lengthy jail stay. I can see the cost/benefit analysis for both sides, and both get something from this deal.

An assumption I make, as a defense counsel and former prosecutor, is that the deal is discussed with the alleged victims, and their opinions are considered.  While only a piece of the overall decision process, their perspective is a necessary factor. Whenever a plea deal is signed by a General/Admiral, I assume he read the recommendations from those most affected by the crime.

Not for Lt. Cmdr. Velasquez’s victims.

But a post-trial e-mail sent to victims by the JAG office left some with the impression that Velasquez would suffer a much harsher fate.

The May 26 e-mail stated that “the judge awarded a sentence of 24 months, a $28,000 fine to be paid right away or else an additional 6 months would be imposed, total forfeitures of pay, and most iportantly [sic], a DISMISSAL from the Navy.”

The e-mail made no mention of the plea agreement. Nor did it state that the judge’s sentence had been largely set aside because of the plea deal. Unless Velasquez violates the terms of the plea agreement and commits another crime, he won’t go to federal prison or pay any penalties.

Stars and Stripes contacted seven of the women whose complaints led to charges against Velasquez. Three said they did not fully understand what happened.

“I was confused when I read the [May 26] Stars and Stripes article, and it said that none of the punishment set would be happening unless he committed another crime … so I guess I don’t even know what his actual punishment is,” said an enlisted soldier whom Velasquez was convicted of molesting while she was a patient at Camp Arifjan. “It’s all been very unclear to me. I ask questions, and a lot of them don’t get answered.”

So much for knowing the outcome beforehand. It appears that none were notified of the plea negotiations, and the first notice occurred haphazardly post-trial.

Let’s take this bit by bit. The prosecutors were focused on the nuts and bolts of the case and did not consult with the victims. It seems that some sort of notification would be necessary, especially during sentencing preparations. Obviously not.

The investigators/special agents involved in the case did not consult the victims. I only mention this because, occasionally, victims will identify with the agent who interviewed them. A bond occasionally forms, and that investigator becomes a natural point of contact. Given their separation from pretrial procedure upon the completion of their investigation, I don’t expect them to act in a liaison capacity.

This brings us to the Victim Coordinators/Liaisons. The reason they receive a paycheck from the Department of Defense is to act as a sounding board and advocate for all alleged victims. They know the prosecutors and commanders, and they seek answers (proactively) on behalf of those in need of their services. Where were they? Asleep at the wheel. After all, this is a big case, with 23 alleged victims. You can’t tell me this wasn’t a priority on the office whiteboard.

In response, the Navy issued a change to their Victim Witness regulation as follows (Note: Trial Counsel is a military prosecutor):

[h.](5)  Victims [sic] Views Concerning Pretrial Plea Negotiations.  Victims have a statutorily designated advisory role in decisions involving prosecutorial discretion, such as plea-bargaining.  Trial counsel shall ensure victims are aware of their right to act in this advisory capacity.  In those cases in which a victim has elected to exercise the right to act in such an advisory capacity, Trial Counsel shall ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority prior to the finalization of a pretrial agreement.

Isn’t it nice when the Armed Forces issues a regulation telling people to do what they are logically supposed to do? What is next, a directive to not jab sharp objects into your own eye sockets?

So, maybe those folks who interrogated me with “what about the victim?” have a point. Perhaps they see the way that defense attorneys actually give a crap, and they’d like the same level of caring for the alleged victims. It certainly stands to reason. Perhaps the Navy should look at the conduct of their retained and appointed defense attorneys and mirror their victim advocate training accordingly.

H/T to CAAFlog.com