The federal judge who refused to protect a civilian rape counselor from a military court order didn’t do the Air Force Academy any favors. The academy is only beginning to recover from the disgrace it earned for ignoring or punishing dozens of women who reported sexual assaults. Now the military wants to compel a counselor to turn over records about her client or they’ll throw her in, what, the brig?
This latest situation arose from the impending trial of an Air Force Academy cadet. In a precedent-setting move, the military court demanded the counseling records of his alleged rape victim. Counselor Jennifer Bier was held in contempt for refusing to turn them over.
Bier is standing her ground, and we salute her decision to protect her client’s confidentiality. But sadly, thanks to Wednesday’s federal court ruling, Bier can be arrested for refusing to turn over records of the counseling sessions regarding the alleged rape involving Air Force Academy Lt. Joseph Harding. Bier asked U.S. District Judge Edward Nottingham to bar the military court’s request, but he ruled that the defendant’s right to a fair trial trumps patient confidentiality. Bier is appealing the ruling. U.S. appeals courts historically have ruled in favor of confidentiality when it comes to discussions with therapists. Nottingham was quoted as saying, “Suppose she says, ‘I made all of this up.’ ” Well, suppose she didn’t? She has rights, too.
A pathetic part of this episode is that it comes as the academy is trying to overcome a scandalous record of ignoring or punishing women who reported sexual assaults. The problem erupted in 2003 and led to changes in leadership and policies at the Colorado Springs military school.
But the Bier controversy isn’t the only legal case of the month. The academy just completed the trial of a drunken senior cadet who was cleared of rape, convicted of indecent behavior and sentenced with a slap on the wrist.
Nottingham said that the military court’s request was fair because it asks Bier to turn over records for review by the military judge, who would then decide if they can be used in court. Such a process would be fine if it carried assurances that the records would not be passed along to Harding and his lawyers, but that’s not the case. Victims advocates believe that allowing anyone – even the judge – to know what they say to their therapist would be enough to keep some victims from getting the help they deserve, and we believe the line should not be easily crossed.
This intimidation tactic should not proceed. We urge the military to do the right thing: proceed with the trial and leave the confidential counseling records alone.
