In a confusing move, a three-judge panel of the Army CCA granted a petition for a writ of mandamus for an alleged victim under Article 6B, which reversed a military judge’s ruling that ordered the alleged victim’s mental health records be produced for an in camera review (when a hearing is held before the judge in private chambers). This was a published decision in LK v. Acosta & Sanchez (May 24, 2017). However, while beginning its decision because the Rule “give unclear guidance to military judges,” the CCA reached two strange conclusions that made it worse.

Military Rules of Evidence (Mil. R. Evid.) 513(d)(2) states a patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist except in cases when the patient is dead or when the communication is evidence of child abuse or of neglect. Likewise, if the case involves a spouse charged with a crime against a child of either spouse, the confidentiality rule no longer applies.

The CCA analyzed the exception to the privilege for Mil. R. Evid. 513(d)(2) by interpreting the first clause to apply only to inculpatory evidence (evidence that shows a person’s involvement in an act) and specifically not to exculpatory evidence (evidence that can exonerate a defendant of guilt). Additionally, they interpreted the second clause to apply only to the admission of proof, not to its production pursuant to an order from the court-martial. These interpretations make an otherwise simple exception much more convoluted.

In the case, the alleged victim, LK, is the child of the defendant’s spouse, who allegedly committed various sexual offenses against LK. A friend of LK disclosed during the criminal investigation that LK participates in therapy. Under the 513 exception, LK’s records are eligible to be used for evidence.

The defense requested the therapy records on the basis they might contain information about LK’s truthfulness and the extent of her injury. This request was instantly problematic because last year the Army CCA noted access to such information requires more than mere speculation on the part of the defense. However, the military judge in LK ordered the records produced for an in camera review based on the exception in 513 not on the weak defense justification.

Reversing the military judge’s ruling, Judge Herring interpreted the two clauses of this exception separately. With the first clause, he specified it is limited to communications that are evidence of child abuse or neglect; it does not apply to statements that are “silent” as to whether or not there was child abuse. However, the problem with this interpretation is the fine line between an inculpatory statement, an exculpatory statement, and a neutral statement. Likewise, the only directly inculpatory portion of mental health records fits the exception while other information may not be disclosed despite its necessary context.

Judge Herring’s conclusion is based in part on the non-binding Appendix 22 of the Manual for Courts-Martial, which suggests exceptions were developed to address the specialized society of the military and separate concerns that must be met “to ensure military readiness and national security.” However, it’s unlikely the Rule was written to deliberately prevent a commander from discovering an allegation of child abuse or neglect was false, especially considering the repercussions of such an assertion to unit cohesion and readiness. Despite this, the CCA concluded that the exception does not allow privileged communications to establish the absence of abuse.

Next, Judge Herring held that the second clause of 513 applies only to the admission of evidence and not to an order for its production. The judges interpret “in a proceeding” to mean the proceeding in question. According to the judge, in cases of child witnesses, the parent or guardian may assert a privilege on behalf of the child. The exception in the second clause thus operates to prevent one spouse from asserting the psychotherapist privilege to prevent the admission of statements of child abuse against themselves or their spouse. This conclusion has allowed the privilege such a narrow exception it works as broadly as possible. It also allows either side to call the mental health provider to testify at trial but also prohibits pretrial questioning of the provider, which makes little to no sense.

Judge Herring’s ruling also includes an observation about the second clause that provides a privilege to married couples that unmarried couples do not share. According to the judge, in the case of an unmarried accused, the exception would never apply. However, false allegations are not impossible in either a marriage or a committed relationship lacking legal formality. Likewise, because the first clause exempts all “evidence of child abuse or of neglect” regardless of whether the accused is married or not, the judge’s preoccupation with an unmarried defendant only exists as the result of the CCA’s analysis of the first clause.

Instead of clarifying the case by affirming the plain language of the exception and the military judge’s decision the CCA’s ruling merely confuses the situation.

Military criminal defense lawyer Joseph L. Jordan continually keeps up to date on the latest developments in military criminal law. Any military services members who are accused of crimes and who must face a trial by court-martial can rely on Attorney Jordan for assistance. His extensive experience and hard-hitting legal protection might save you, your rights, your reputation, and your rank. Whether you are stationed abroad or at home, you can depend on Attorney Jordan for the most complex defense cases. Those on active duty or retired military service members can also rely on him for reliable and committed criminal defense. Contact his firm at (866) 361-4723 or fill out the website’s online form for additional information.