Forcing Victims to TestifyJanuary 20, 2020
The term “complaining witness” refers to an individual who has been allegedly wronged, or harmed, by a Servicemember facing a Court-Martial. For example, the complaining witness in a sexual assault Court-Martial is the individual who was allegedly sexually assaulted. The prosecution refers to this individual as a “victim.” The terms, in this context, are interchangeable.
Generally, Servicemembers are under the impression that if the complaining witness doesn’t want to pursue the charges, there will be no Court-Martial. This is not the case. First of all, the Government may not need the complaining witness’s testimony to pursue charges. If there is other evidence (i.e. text messages, videos, eye witness testimony, bank records), the Government may not need cooperation from the complaining witness. Furthermore, the Command and prosecuting JAGs usually don’t care if the complaining witness wants to pursue charges. The Command is generally motivated by preserving good order and discipline and JAGs usually aim to hold Servicemembers accountable for their actions when they believe the Servicemember is guilty. It can be frustrating for a Servicemember when the individual they allegedly wronged does not want to pursue charges but the Government does anyway; however, this happens quite often.
Most of the time, the complaining witness’s testimony is necessary to achieve a conviction. The prosecution absolutely CAN force a complaining witness to testify (even an alleged sexual assault “victim”). However, the UCMJ affords complaining witnesses the right to be treated with fairness and respect for their dignity and privacy. Most prosecuting JAGs have interpreted this to mean that if a complaining witness doesn’t want to testify, they will not pursue a Court-Martial. From time to time, despite this provision, prosecuting JAGs will still pursue a Court-Martial when a complaining witness does not want to. Complaining witnesses in this situation often file complaints with members of Congress that their rights are not being respected. Sometimes this attention from Congress backs the prosecutors down; other times, it does not. Even if the prosecution persists, it is never good (for them) to have an uncooperative complaining witness testify.
Servicemembers facing a Court-Martial with a complaining witness need to be represented by a military attorney who can communicate with him/her. Many cases are disposed of with less than a Court-Martial because of a defense attorney working with the complaining witness’s lawyer.
Contact Attorney Barry today for a free consultation