A while back I noted the Federal Register notice of proposed stylistic changes to the Military Rules of Evidence. That notice includes Mil. R. Evid. 514: Victim Advocate – Victim Privilege. I’ve been curious about the genesis of this rule, especially since I could find no notice of proposed rulemaking.

This morning I figured it out. The privilege is (will likely be) required by the 2012 NDAA. While the bill is in conference to work out differences between the House and Senate versions, the privilege appears in both (so I expect it will survive).

The Senate version contains the following language, requiring the President to promulgate a change to the Manual (i.e., the impending MRE provision):

SEC. 564. REQUIREMENT FOR PRIVILEGE IN CASES ARISING UNDER UNIFORM CODE OF MILITARY JUSTICE AGAINST DISCLOSURE OF COMMUNICATIONS BETWEEN SEXUAL ASSAULT VICTIMS AND SEXUAL ASSAULT RESPONSE COORDINATORS, SEXUAL ASSAULT VICTIM ADVOCATES, AND CERTAIN OTHER PERSONS.

Not later than 60 days after the date of the enactment of this Act, the President shall establish in the Manual for Courts-Martial an evidentiary privilege against disclosure of certain communications by victims of sexual assault with Sexual Assault Response Coordinators, Sexual Assault Victim Advocates, and such other persons as the President shall specify for purposes of the privilege.

The House version adds the privilege to the UCMJ (note: there appears to be a clerical error in the paragraph designations):

SEC. 584. PRIVILEGE IN CASES ARISING UNDER UNIFORM CODE OF MILITARY JUSTICE AGAINST DISCLOSURE OF COMMUNICATIONS BETWEEN SEXUAL ASSAULT VICTIMS AND SEXUAL ASSAULT RESPONSE COORDINATORS, VICTIM ADVOCATES, AND CERTAIN OTHER PERSONS.

    (a) Privilege Established-
      (1) IN GENERAL- Subchapter XI of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by adding at the end the following new section:

`Sec. 940a. Art. 140a. Privilege against disclosure of certain communications with Sexual Assault Response Coordinators, Victim Advocates, and certain other persons

    `(a) Privilege Against Disclosure- Communications between a person who is the victim of a sexual assault or other offense covered by section 920 of this title (article 120) and a person specified in subsection (b) and the records relating to such communications are not subject to discovery and may not be admitted into evidence in any case arising under this chapter.
    `(b) Persons Covered by Privilege- The privilege granted by subsection (a) applies to–
      `(1) a Sexual Assault Response Coordinator;
      `(2) a Sexual Assault Victim Advocate; and
      `(3) personnel staffing the DOD Safe Helpline or successor operation.
    `(c) Consent Exception- The victim of a sexual assault may consent to the disclosure of any communication or record referred to in subsection (a) regarding the victim.
    `(d) Relation to Other Privileges Against Disclosure- The privilege granted by subsection (a) in cases arising under this chapter is in addition to any other privilege against disclosure that may exist with regard to communications between a victim of a sexual assault and another person.’.
      (2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1034a the following new item.
      `940a. Art. 140a. Privilege against disclosure of certain communications with Sexual Assault Victim Advocates, Victim Advocates, and certain other persons.’.
    (b) Applicability- Section 940a of title 10, United States Code, as added by subsection (a), applies to communications and records described in such section whether made before, on, or after the date of the enactment of this Act.

Policy wonks might appreciate that I think there’s more to the story (the provision appears in both the HASC and SASC reports, but not in the HASC Military Personnel Subcommittee Mark or the HASC Chairman’s Mark), but it looks like the creation of the privilege is a done deal.

Practitioners should appreciate that there’s already been some scholarship on this issue, in the 2005 issue of the Military Law Review: Major Paul M. Schimpf, USMC, Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to Communications Between a Victim and Victim-Advocate in the Military, 185 Mil. L. Rev. 149 (Fall, 2005) (proposing expansion of the psychotherapist-patient privilege – Mil. R. Evid. 513 – to include  victim advocates).

17 Responses to “More on the Victim Advocate Privilege (Mil. R. Evid. 514)”

  1. Phil Cave says:

    1.  So, the TC, doing their required due diligence under Brady, etc., says to the complaining witness, “Did you say anything different to the VA?”  Answer, “Yes.”  After some additional questions the TC decides the “different” is significant and in favor of the accused.  The complaining witness refuses to consent to release of the privilege.  Now what?

  2. Zachary Spilman says:

    Good question! The rule (proposed rule? – I can’t say with authority if this type of action is exempt from the rulemaking provisions of 5 U.S.C. 553) reads as follows:

    Rule 514. Victim Advocate—Victim Privilege[1]

    [1] Proposed Rule 514 is contained in the pending 2011 Executive Order. No changes have been made from the pending Executive Order except to add the word “alleged” before the word “victim” to remain consistent with the rest of the MRE.  Use of the term “alleged victim” has become customary in military practice and differs from Federal practice.  See FRE 412(d) and comment associated with proposed Rule 412 in this document.

    (a) General Rule. An alleged victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating advice or supportive assistance to the alleged victim.

    (b) Definitions. As used in this rule:

                    (1) “Alleged Victim” means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense.

                    (2) “Victim advocate” means a person who:

                                    (A) is designated in writing as a victim advocate in accordance with service regulation;

                                    (B) is authorized to perform victim advocate duties in accordance with service regulation and is acting in the performance of those duties; or

                                    (C) is certified as a victim advocate pursuant to federal or state requirements.

                    (3) A communication is “confidential” if made in the course of the victim advocate – victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.

                    (4) “Evidence of an alleged victim’s records or communications” means testimony of a victim advocate, or records that pertain to communications by an alleged victim to a victim advocate, for the purposes of advising or providing supportive assistance to the alleged victim.

    (c) Who May Claim the Privilege. The privilege may be claimed by the alleged victim or the guardian or conservator of the alleged victim. A person who may claim the privilege may authorize trial counsel or a defense counsel representing the alleged victim to claim the privilege on his or her behalf.  The victim advocate who received the communication may claim the privilege on behalf of the alleged victim. The authority of such a victim advocate, guardian, conservator, or a defense counsel representing the alleged victim to so assert the privilege is presumed in the absence of evidence to the contrary.

    (d) Exceptions. There is no privilege under this rule:

                    (1) when the alleged victim is dead;

                    (2) when federal law, state law, or service regulation imposes a duty to report information contained in a communication;

                    (3) when a victim advocate believes that an alleged victim’s mental or emotional condition makes the alleged victim a danger to any person, including the alleged victim;

                    (4) if the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate are sought or obtained to enable or aid anyone to commit or plan to commit what the alleged victim knew or reasonably should have known to be a crime or fraud;

                    (5) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or

                    (6) when admission or disclosure of a communication is constitutionally required.

    (e) Procedure to Determine Admissibility of Alleged Victim Records or Communications.

                    (1) In any case in which the production or admission of records or communications of an alleged victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

                                    (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

                                    (B) serve the motion on the opposing party, the military judge and, if practicable, notify the alleged victim or the alleged victim’s guardian, conservator, or representative that the motion has been filed and that the alleged victim has an opportunity to be heard as set forth in subdivision (e)(2).

                    (2) Before ordering the production or admission of evidence of an alleged victim’s records or communication, the military judge must conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the alleged victim, and offer other relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend the hearing and be heard at the alleged victim’s own expense unless the alleged victim has been otherwise subpoenaed or ordered to appear at the hearing. However, the proceedings may not be unduly delayed for this purpose. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

                    (3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

                    (4) To prevent unnecessary disclosure of evidence of an alleged victim’s records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

                    (5) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

     
  3. soddi says:

    @ Mr. Cave. The victim gets tired of being cross-examined. She walks.

  4. Silence Dogood says:

    The use of the word “alleged” was conspicuously absent at first, so I am glad to see that the proposed rule includes the word.  It may “save” the privilege, but I wonder if it changes the intent and the effect.

    Was the original omission of “alleged” a Congressional Freudian slip? Methinks not.

  5. stewie says:

    So exception 6 is big enough to drive the proverbial large vehicle resembling a truck through. So at the end of the day, we have a hearing in front of the judge similar to a 412 hearing, and they determine what comes in, which I am assuming in most cases is going to be most everything.

  6. Ama Goste says:

    Shhh, Stewie.  Don’t let Congress know that, or they’ll take out that exception.

  7. coming late to the party says:

    So will this be retro-active? meaning if a victim makes disclosures today, but in the time it takes to get to trial this becomes law, can s/he claim the privilege? I think not, but I am interested to read your thoughts.

  8. Cloudesley Shovell says:

    Many of these amendments to the UCMJ and MRE regarding sex crimes have been in the pipeline for nearly the last two years.  Should any of you get the opportunity to participate in a working group assigned the task of writing statutory or rule amendments, take it.  It’s a surprisingly difficult process, and you find yourself weaving your way through a thicket of competing interests.  
    Having done both laws and sausages, I prefer sausages.

  9. soonergrunt says:

    So what if the alleged victim informs the VA that he/she lied or is lying and the alleged crime did not actually occur?
    I assume that would be covered under either d. 4.  since that would constitute a knowing violation of Art. 131 (either ongoing or planned), or would it be under d. 6 since the information would be potentially exculpatory?

  10. Christopher Mathews says:

    So, the TC, doing their required due diligence under Brady, etc., says to the complaining witness, “Did you say anything different to the VA?”

    Does the TC have a Brady obligation to ask the complaining witness if they said anything different to their clergy?  Their spouse?  If the witness is an accused testifying under a grant of immunity, does the TC have a Brady obligation to ask what they told their own defense counsel?

  11. a concerned reader says:

    @ Christopher Matthews  . . . the Brady argument is much easier for the VA issue because most often, at least in the army, the civilian VA / VWL works in the OSJA, er go what she knows the government knows thus Brady attaches.  Remember too, the courts are pushing this beyond the scope of what the individual TC knows.  There is an argument that, especially for military victims and military employees, (docs etc.) the TC DOES have an affirmative obligation to seek out Brady evidence.

  12. Mike "No Man" Navarre says:

    I don’t see how this isn’t basically the psychotherapist-patient privilege.  That is largely the nature of the victim-advocate role and the constitutionally required exception has seemed to work out ok, not great, but ok, in the 412 arena.

  13. Phil Cave says:

    Mike, I agree, but disagree.  The VA is more intended to be a hand-holder and a person who assists the complaining witness navigate the legal system and understand what’s going on and what her rights are.  In my experience this is not the same as getting counseling from a mental health provider.  In fact, I would suggest the VA has little business getting into specifics of the allegations.

    But, as CR says, there are VA’s out there who are nothing more than a trial counsel functionary, like a TC paralegal who believe their job is to help the prosecution, who coach the witness for example.  I guess this is what really irks me about this privilege issue.  Maybe what needs happen here is to formally ensure the VA is in fact independent from the TC and that the TC is barred from talking to the VA as well, other than to inform them of specific actions, 32/trial dates, 412/513 motions sessions, etc.

    In fact one time I had a TC who went and talked to “their” VA, while I had a motion pending to prohibit the TC talking with the VA.  Rationale for that action, while a motion is pending — the judge hadn’t ruled yet, so it was OK.  I guess I needed to put in the motion that the TC should not talk to the VA pending a ruling, to make it clear.  Of course when the MJ ruled in my favor it was OBE.  Client was acquitted, so no appellate issues.

     

  14. Zachary Spilman says:

    I’m already jealous of the counsel (trial and appellate, both sides of the bar) that get to be the early litigators of this rule. So, I’ll just leave these here:

    Senate Armed Services Committee Report:

    Requirement for privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and Sexual Assault Response Coordinators, Sexual Assault Victim Advocates, and certain other persons (sec. 564)

    The committee recommends a provision that would require the President to establish in the Manual for Courts-Martial, not later than 60 days after the date of enactment of this Act, an evidentiary privilege against the disclosure of certain communications by victims of sexual assault with Sexual Assault Response Coordinators, Sexual Assault Victim Advocates, and such other persons as the President specifies.


    House Armed Services Committee Report:

    Section 584–Privilege in Cases Arising Under Uniform Code of Military Justice Against Disclosure of Communications Between Sexual Assault Victims and Sexual Assault Response Coordinators, Victim Advocates and Certain Other Persons

    This section would create a confidentiality privilege in military tribunals for communication between sexual assault victims and Sexual Assault Response Coordinators, Sexual Assault Victims Advocates, and DOD SAFE Help line personnel.

     

  15. CPT Crunch says:

    @ a concerned reader: I think that’s partly right. The question is who is “the government” for purposes of Brady/Giglio? Generally the answer is going to be everyone on the prosecution team. Certainly that includes the TC and CID agents. If a member of the prosecution team possesses exculpatory or impeachment evidence and doesn’t disclose it to the defense, then “the government” has suppressed the evidence and there’s been a violation. Conceptually, it’s not really about the TC’s personal obligation to seek Brady evidence, it’s just that the TC is going to be in the best position to gather all the Brady evidence possessed by the government and disclose it. Whether or not a VA in a given case was on the prosecution team is a closer call than you make it out to be, I think. At my installation they don’t work at the OSJA, but in many ways they are part of the multi-agency team that responds to sexual assault. Does anyone know of case law dealing with this issue?
    This is already an issue, and I’m not sure if the proposed privilege would make it better or worse. In some ways, it strengthens the argument that VAs are not part of the prosecution team. But if you’re right and they are then it’s going to make the TC’s job of finding and disclosing evidence immensely more difficult.

  16. k fischer says:

    What about victims advocates for larceny victims, battery victims, forgery victims, Officers and NCO’s who are victims of disrespect, and arson victims?  Shouldn’t they have advocates, too?  Or, are they just witnesses? 

    Why are we conferring Constitutional rights to this special class of victims? In personal injury cases, the Plaintiff cannot assert a medical privilege. 

    It appears that in order to ensure more convictions, we are hamstringing defense counsel’s ability to ferret out false allegations by not allowing them to learn of contradictory statements made by the accuser.

    But, I guess its okay.  I mean, they are only Servicemembers, right?   So, for sexual assault cases, perhaps the new maxim is: ‘Twould be better that ten innnocent men be registered sex offenders than let one guilty man get acquitted.

  17. soonergrunt says:

    @k fischer, 12/06. 1604–
    There are no political pressure groups for those people yet.  Give it time.