Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.
But 2016 brought some clarity to Article 6b.
In the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF considered a petition by an alleged victim who sought to quash a military judge’s order for disclosure of portions of her mental health records. EV was the civilian spouse of an active duty Air Force staff sergeant stationed in Okinawa Japan, and she alleged that Marine Sergeant Martinez sexually assaulted her on the evening of December 31, 2014. EV repeated her allegation during the following weeks and discussed the incident with mental health practitioners. Then, on February 12, 2015, EV’s husband requested a humanitarian transfer to California so that he and EV could be closer to their families for support. The transfer request was supported by documents from EV’s mental health records, and was approved.
Sergeant Martinez was charged with numerous sex offenses and the case was referred for trial. Martinez’s defense counsel sought production of EV’s mental health records in discovery. EV – with the assistance of military victims’ counsel – objected and claimed that the records were protected by the psychotherapist-patient privilege (Mil. R. Evid. 513). The military judge initially agreed with EV, except for the records that were already disclosed in connection with the transfer request, however he later ordered limited disclosures from the records because he found that they could be evidence that EV had a motive to fabricate the allegations in order to obtain a transfer for her husband.
EV appealed this ruling asserting that it violated the strict limits of Mil. R. Evid. 513 and invoking Article 6b(e) which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The Navy-Marine Corps CCA denied the petition, however, concluding that EV did not have a clear and indisputable right to reversal of the military judge’s order. EV then appealed that denial to CAAF.
But a unanimous CAAF found that it lacks jurisdiction to consider a writ-appeal under Article 6b:
When examined, the statute is quite straightforward. It is a clear and unambiguous grant of limited jurisdiction to the Courts of Criminal Appeals to consider petitions by alleged victims for mandamus as set out therein. There is no mention whatsoever of this Court. Congress having legislated in this area and bestowed certain third-party rights on alleged victims, we must be guided by the choices Congress has made. Congress certainly could have provided for further judicial review in this novel situation. It did not.
75 M.J. at __, slip op. at 5.
CAAF’s decision in EV is a significant limit on the reach of Article 6b, though an entirely sensible one from a policy perspective. Delaying a court-martial to litigate the collateral matter of a witness’s privilege is a radical disruption of the military justice system that undermines an accused’s right to a speedy trial.
But EV isn’t the end of the story, as CAAF is currently deliberating another case that questions whether an accused can petition the court for relief in connection with an Article 6b appeal. In the Coast Guard case of Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page), the alleged victim won her appeal at the Coast Guard CCA, and that court issued an opinion that dramatically expanded Mil. R. Evid. 513 to include the psychotherapist’s conclusions (diagnoses) and resulting treatments. 75 M.J. 717 (discussed here). The accused then petitioned CAAF for relief, and the court is considering whether its decision in EV also limits the appellate options available to an accused.
Litigation over the scope of Article 6b isn’t over, but these events earned the Article a spot on our list of the Top Ten Military Justice Stories of 2016.