I’ve been watching, with great interest, developments regarding proposed Mil. R. Evid. 514: Victim Advocate – Victim Privilege (see: here and here). Until now, I beleived the proposed Mil. R. Evid. was to be the result of a legislative requirement. Congress, it seems, feels differently.
The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:
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
The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.
The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.
The House and the Senate recede. Neither provision is included in the conference report.
The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.
Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:
The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:
JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.
However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here.
Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?