On June 30, the marshals service notified the Air Force that they would not carry out the arrest warrant for Jessica Brakey’s therapist in a military sexual assault case.  Jessica Brakey was one of several women to recently come forward about sexual assault in the military.  The decision was a positive stroke for victim advocates.  Brakey alleges she was sexual assaulted by a superior officer while at the Air Force Academy in Colorado Springs, CO.  Her case not only raised issues about sexual assault in the military, but also about the extent of counselor-client privilege.  Air Force judge David Brash ordered Brakey’s counselor to turn over documents regarding Brakey’s therapy without the defense adequately demonstrating a need for the information, according to Brakey’s attorney. 

Sexual assault in the military has become an increasing concern for victim providers as well as the Pentagon.  Twenty-eight percent of female veterans have reported suffering from Military Sexual Trauma (MST) during their career.  Due to the hierarchical nature of the military, sexual assault is more prevalent.  Women, as in Brakey’s case, are hesitant to say no to a superior officer because they are so accustomed to following orders in the military.  Further, the military has not been adequately responding to sexual assault claims, at times ignoring or even punishing victims.  Sexual assaults are handled entirely within the military, presenting an inherent conflict for responding officers between the desire to do justice and the responsibility to maintain morale and protect their troops. 

Brakey’s case also brought up the issue of counselor-client privilege.  In the military, like in federal law, client privilege is protected unless the defendant can illustrate the need for privileged documents in order to ensure a fair trial.  In Brakey’s case, the judge ordered her counselor to turn over documents without such a showing.  Brakey’s counselor refused and an arrest warrant was issued.  In sexual assault cases, counselor-client privilege is tantamount.  According to Joan Zorza, a Washington, D.C. attorney who is editor of the newsletter “Sexual Assault Report,” “it is common for counseling records to reflect victims’ self-doubt and even self-blame when they've been raped.” (Therapist… citing Zorza).  Zorza further explains in acquaintance rape cases, victims engage in justifying the rapist’s behavior because they do not want to admit they have been raped.  Thus, protecting these documents prevents the defense from putting the victim on trial and offering a defense to the accused.  The decision in Brakey’s case sent the message to the military that they, too, must respect counselor-client privilege and take sexual assault seriously.

Compiled from: Marie Tessier, Therapist Spared Arrest in Air Force Rape Case, Women’s eNews, 24 July 2006; Marie Tessier, Privacy Skirmish Clouds Military Rape Case, Women’s eNews, 6 June 2005; Marie Tessier, Sexual Assault Pervasive in Military, Experts Say, Women’s eNews, 3 March 2003.