Rape Counselor Challenges a Court Martial Subpoena to Disclose Therapy Sessions
Tuesday, June 7, 2005 2:30 PM

Jennifer Bier, a rape counselor in Colorado Springs, has refused to disclose records of her therapy sessions with a client,  a former Air Force Academy cadet who accused 2nd Lt. Joseph Harding of sexual assault in 2002. On May 28th, 2005, the Military Court issued a warrant for her arrest to force Bier to appear before the court martial in Texas.  Bier has filed for a temporary restraining order and is appealing the military judge's decision in federal circuit court.

In 1999 Former U.S. President Clinton created the Military Rules of Evidence 513, (MRE), which established a therapist-client privilege for the military to protect the “confidential communications of victims and witnesses to psychotherapists” in UCMJ proceedings. The only applicable exception to the privilege is “when admission or disclosure is constitutionally required.”

Defense attorneys argue Harding has a constitution right to a fair trial that includes the “right to information that may clear him” of the charges. However, federal case law concerning MRE 513 suggests that defendants should not have access to privileged files based on vague claims that the files contain potentially useful information. 

Yet, the Military Judge requested the subpoena to review the materials and determine whether they contain anything pertinent to the defense, and if not, the documents would be returned to Bier and withheld from public disclosure. Under U.S. case law, a Court is entitled to conduct an in-camera review of psychiatric records to determine the potential relevance and applicability of the documents and weigh these against the victim’s privacy rights for discovery.

Bier worries that if she complies with the subpoena, she will discourage rape victims in the military from seeking counseling and treatment. Bier is willing to face jail in order to protect her client’s privacy, aware that the defense may be attempting to secure the documents simply to intimidate her client or to portray Brakey as mentally unstable. The Supreme Court earlier declared it unconstitutional to force a counselor to produce a patient’s records in federal cases, recognizing that such documents have often been used to place the rape-victim on trial.

In response to this case members of Congress are urging Secretary of Defense Donald Rumsfeld to strengthen military rules safeguarding the therapist-patient privilege for service members who are raped.

Compiled from: Pam, Subek, “Rape counselor’s arrest orderedThe Gazette 28 May 2005; The Associated Press, “Rape Counselor Fights Warrant over Opening Cadet’s File” June 5, 2005; Miles Moffeit, Denver Post. “Colorado Therapist enlists lawyer in AFA case.” 5 April 2005; Jag Central, June 2, 2005; Stacy Flippin, “Military Rule of Evidence 513: a shield to protect communications of victims and witnesses to psychotherapists,” Army Lawyer Sept. 2003