The Article 32 preliminary hearing is the gateway to a general court-martial under the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 832. For an alleged crime victim, particularly in sexual assault cases, that hearing can feel like the first hard test of the military justice process. A common and important question is whether the victim’s own attorney, the Special Victims’ Counsel (SVC) in the Air Force and Coast Guard or its equivalent in the other services such as the Army and Navy Victims’ Legal Counsel, may take part in the proceeding. The answer is yes. Victims have enforceable rights at Article 32 hearings, and their counsel are permitted to participate in defined ways to protect those rights. This article explains the scope and the limits of that participation.
How the modern Article 32 hearing came to be
The role of victims’ counsel at Article 32 cannot be understood without the reforms that reshaped the hearing itself. Through the Fiscal Year 2014 and Fiscal Year 2015 National Defense Authorization Acts, Congress rewrote Article 32 from the ground up. The proceeding was renamed a preliminary hearing rather than an investigation, its purpose was narrowed to determining whether probable cause exists to believe an offense was committed and whether the accused committed it, and the hearing officer’s broad investigative and discovery role was curtailed. A central aim of these changes was to stop the hearing from being used to subject alleged victims, especially in sexual assault cases, to wide-ranging cross-examination and to function as a discovery tool for the defense. The same reform era expanded the role of counsel dedicated to representing victims, so the participation of SVC at Article 32 is part of this larger redesign of the hearing.
The victim’s underlying rights
Victims’ counsel participate because the victim holds substantive rights that need protecting. Under Article 6b of the UCMJ, a victim of an offense has, among other things, the right to be reasonably heard, the right to be treated with fairness and respect, and the right not to be excluded from public proceedings. A victim has the right not to be excluded from any portion of the Article 32 hearing related to the alleged offense, and the hearing officer may exclude the victim only on a finding by clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony. These rights set the stage on which SVC operates: the counsel is there to make sure the victim’s statutory protections are honored as the hearing unfolds.
What victims’ counsel may do at the hearing
Within that framework, SVC participation is real and substantive. In a sexual assault case in which the victim has counsel, the victim is represented at the Article 32 hearing by that counsel. The recognized functions include several distinct tasks.
First, SVC may assert the victim’s right to be reasonably heard, either by the victim personally or through counsel. The statute and implementing rules expressly contemplate that a victim may be heard through counsel on certain matters.
Second, SVC plays a protective role concerning sensitive evidence. Counsel may raise and argue privilege questions and issues under the Military Rules of Evidence, including the rape-shield protections of Rule 412 and the psychotherapist-patient and victim-advocate privileges of Rules 513 and 514. Article 6b and the rules specifically give the victim the right to be heard, through counsel, on matters implicating these rules, both at the preliminary hearing and in related court-martial litigation. This is one of the most important reasons SVC participation matters, because it allows the victim to resist improper inquiries into private records and sexual history.
Third, SVC may submit post-hearing matters. The rules allow the government, the defense, and any victim named in a specification, or that victim’s counsel, to submit matters to the preliminary hearing officer within a short window after the hearing closes. This gives the victim, through counsel, a voice in how the hearing officer frames recommendations.
The right to decline to testify
A defining feature of the post-reform hearing, and a frequent subject of SVC advocacy, is the victim’s protection from being compelled to testify. A named victim who has suffered direct physical, emotional, or pecuniary harm and who declines to testify is not required to testify at the preliminary hearing. For alleged victims of covered sex offenses, the protection is especially clear: the victim has the right to decline to appear. As a practical matter, a defense request for the victim’s appearance functions as a request to the victim rather than a command, and the victim, advised by counsel, may decline. SVC routinely counsels victims about this choice and communicates the decision to the hearing officer, which is one of the most consequential forms of participation in the entire proceeding.
The limits of SVC participation
SVC participation is meaningful but bounded. The counsel represents the victim, not the government, and is not a second prosecutor; the trial counsel remains responsible for presenting the government’s case. SVC does not direct the hearing, does not examine and cross-examine witnesses generally the way the parties do, and does not control charging decisions. Its participation is keyed to the victim’s own rights and interests: being heard, protecting privileged and shielded information, advising on and asserting the right to decline to testify, and submitting matters the rules permit. The hearing officer manages the proceeding and ultimately makes the probable cause determination, and the convening authority decides what to do with it.
Conclusion
Special Victims’ Counsel are allowed to participate in Article 32 preliminary hearings, and their participation is built into the modern structure of the hearing. Following the 2014 and 2015 reforms, victims hold enforceable rights to be present, to be reasonably heard through counsel, to protect privileged and shielded information under Military Rules of Evidence 412, 513, and 514, to submit post-hearing matters, and, for covered offenses, to decline to testify altogether. SVC exists to assert and safeguard exactly those rights. The participation is focused rather than open-ended, reflecting the counsel’s role as the victim’s advocate rather than as a party to the prosecution, but within that role it is a genuine and important voice at one of the most pivotal stages of a court-martial.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.