The Appellant was convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct in violation of Article 120, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, all in violation of Article 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge. The Army CCA affirmed.
Judge Ryan writes for a unanimous court. The trial judge ruled that the “putative child victim” did not waive the privilege for communications she made to her pastor concerning her allegations against Appellant that he sexually abused her (including a statement that “she had made it all up . . . to get attention”), despite both the victim and her mother giving the pastor permission to disclose the statements to the trial counsel, and pastor actually disclosing the statements. CAAF finds that the determination that the privilege was not waived was erroneous.
Here, there is no question that both BK and her guardian, AJ, affirmatively consented to Pastor Ellyson’s disclosure of the statements to trial counsel. Under such circumstances, and for the reasons below, we think that it would be inappropriate to allow the claim of privilege to prevent defense counsel from using BK’s statements at trial.
Slip op. at 9 (marks omitted).
CAAF also finds that this error was constitutional in nature, as it deprived the Appellant of the opportunity for effective cross-examination, and that it was not harmless.
There is little question that in cases such as these, the credibility of the putative victim is of paramount importance, and that a statement by that person that she had made up some or all of the allegations to get attention might cause members to have a significantly different view of her credibility.
Slip op. at 14.
The ACCA is reversed and the findings and sentence are set aside, with a rehearing authorized. Further analysis to follow.