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).