As a possible jail sentence looms, a Colorado Springs rape counselor will appear before a judge in Texas on Wednesday morning to argue that a subpoena for records of her sessions with a former Air Force Academy cadet is unconstitutional.
Jennifer Bier and her Boston lawyer, Wendy Murphy, will make their case in a closed hearing at Randolph Air Force base in Texas, as part of court-martial proceedings for airman Joseph Harding, who is accused of raping ex-cadet Jessica Brakey and another woman.
The attempt to obtain therapy records, typically deemed off- limits by civilian courts, has drawn the attention of U.S. lawmakers such as Sen. Wayne Allard, who have asked the Air Force, which operates under its own justice system rules, to back off.
Harding’s lawyers are seeking all counseling records involving Bier’s work with Brakey through a subpoena authorized earlier this year by Randolph judge David Brash.
But Bier is fighting the subpoena, saying her client’s privacy rights are under attack.
“The accused has no constitutional right to conduct a fishing expedition in the private records of a rape victim or any kind of victim,” Murphy said. “There’s just no justification for them to snoop around like this.”
Officials at Randolph, including Harding’s defense lawyers, declined to comment. An attorney supervising his legal team has said previously that Harding’s constitutional right to a fair trial overrides Brakey’s privacy interests.
Victim-rights organizations have long complained that military law provides virtually no protection in shielding therapists’ records, and Murphy says she believes the case could end up as a key court test to help shape improvements to the law.
Bier and Murphy are prepared to immediately appeal if the judge rules against them, they said.
“They have ordered me to appear in court, and I’m prepared to accept the consequences,” Bier said. “I’m hoping that what comes out of this is a ruling that decides there’s serious confusion in the law here.”
Aside from the core legal issue, Bier said her personal ethics dictate that she brace for a long legal battle to protect not only Brakey but also other women whose records may be sought for public exposure in the future.
She said she wants to comply with the judge’s order but feels too strongly that she must guard a promise she made to Brakey and other women. “I’m caught between two ethics here,” Bier said.
Staff writer Miles Moffeit can be reached at 303-820-1415 or mmoffeit@denverpost.com.
