The Army CCA thinks Mil. R. Evid. 513 (the psychotherapist-patient privilege) is too confusing; makes it worse
With a published decision in LK v. Acosta & Sanchez (United States v. Sanchez), 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (link to slip op.), a three-judge panel of the Army CCA grants a petition for a writ of mandamus for an alleged victim under Article 6b, reversing a military judge’s ruling that ordered the alleged victim’s mental health records produced for an in camera review.
But while beginning its decision with the observation that the Rule “gives unclear guidance to military judges,” slip op. at 1, the CCA reaches two dubious conclusions that make things worse.
Analyzing the exception to the privilege for “evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse,” Mil. R. Evid. 513(d)(2), the CCA interprets the first clause to apply only to inculpatory (and specifically not to exculpatory) evidence, and the second clause to apply only to the admission of evidence (and not to its production pursuant to an order from the court-martial).
They are puzzling conclusions that make a straightforward exception very confusing.
The alleged victim (identified by the initials LK) is the child of the accused’s spouse, and the charges allege various sexual offenses. A friend of the alleged victim was interviewed by criminal investigators and disclosed that the alleged victim participates in therapy. Mil. R. Evid. 513 makes the records of such therapy privileged, but there are numerous exceptions.
The defense requested the therapy records on the basis that they contain information bearing on the alleged victim’s truthfulness and the extent of her injury. Specifically, the defense argued that it needed the alleged victim’s mental health records to determine:
the extent of mental health treatment, what [LK] stated to the mental health treatment providers to obtain her diagnosis, and what diagnosis she has are all relevant to this case because they have a tendency to make the existence of facts that are of consequence, the truthfulness of [LK] and the extent of her injury, more or less probable.
Slip op. at 2 (quoting record). This is an instantly-problematic justification in the Army (and, most likely, everywhere) because last year the Army CCA noted that access to otherwise-privileged mental health records requires more than this kind of mere speculation (fishing expedition):
On one point there appears to be a unanimous consensus. In sexual-assault and child abuse cases, there is general agreement that a defendant must do more than speculate that, because the complainant has participated in counseling or therapy after the alleged assault, the records in question might contain statements about the incident or incidents that are inconsistent with the complainant’s testimony at trial.
DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No. 201507690, slip op. at 10 n.11 (A. Ct. Crim. App. Feb. 1, 2016) (discussed here) (quoting Clifford S. Fishman, Defense Access to A Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L. Rev. 1, 37 (2007)).
However, the military judge in LK didn’t order an in camera review based on this weak defense justification. Rather, the military judge ordered the records produced for an in camera review because of the following exception to the privilege:
There is no privilege under this rule . . .  when the communication is evidence of child abuse or of neglect, or  in a proceeding in which one spouse is charged with a crime against a child of either spouse.
Mil. R. Evid. 513(d)(2).
Reversing the military judge’s ruling, Judge Herring, writing for the CCA, interprets the two clauses of this exception separately.
First, Judge Herring holds that the first clause of the exception – providing no privilege “when the communication is evidence of child abuse or of neglect” – applies only to inculpatory statements:
The first clause is limited to communications that are evidence of child abuse or neglect. That is, statements that are evidence that child abuse or neglect actually occurred. The privilege does not apply to statements that are silent as to whether there was child abuse or that would be evidence that no child abuse occurred.
Slip op. at 8 (emphasis added). This is a surprising conclusion, since the difference between an inculpatory statement, an exculpatory statement, and a neutral statement can be awfully fine. It also means that only the directly inculpatory portion of mental health records fits the exception, and other information (that might provide essential context) may not be disclosed.
Judge Herring’s analysis is based in part on the non-binding Appendix 22 of the Manual for Courts-Martial (Analysis of the Military Rules of Evidence), which suggests that “the exceptions to the rule have been developed to address the specialized society of the military and separate concerns that must be met to ensure military readiness and national security.” Slip op. at 8 (quoting analysis at A22-51) (marks and additional citations omitted). Assuming this anonymous and non-binding commentary is accurate, it’s very hard to accept that the Rule was written in a way that would deliberately prevent a commander from discovering that an allegation of child abuse or neglect was false, particularly considering the significant impact such an allegation can have on unit cohesion and readiness.
Nevertheless, the CCA concludes that:
The exception d[oes] not allow mental healthcare providers to reveal privileged communications that would establish the absence of abuse.
As the RPI [accused] seeks access to the mental health records for evidence that there was no child abuse, by the plain language of the rule the first clause is inapplicable.
Slip op. at 9 (emphasis in original). This seems to be both untenable and fundamentally unjust. It also begs a significant question: Who determines if the communications are inculpatory, exculpatory, or neutral? One would think this is a matter for a military judge in an in camera review, just like the review that was ordered in this case. But the CCA reverses that order and appears to prohibit such a review.
Second, Judge Herring holds that the second clause of the exception – providing no privilege in a “proceeding in which one spouse is charged with a crime against a child of either spouse” – applies only to the admission of evidence and not to an order for its production:
We interpret “in a proceeding” to mean in the proceeding in question. Military R. Evid. 1101(a) lists the proceedings applicable to the rules of evidence. That is, it is an exception to the evidentiary privilege, not an exception to the disclosure of privileged information. It is an exception that prevents the assertion of the privilege at trial regarding the admission of evidence, it is not an exception that allows the disclosure of privileged information.
In cases of child witnesses, it is the parent or guardian who generally may assert a privilege on behalf of the child. The exception in question thus operates to prevent one spouse from asserting the psychotherapist privilege to prevent the admission of statements of child abuse against themselves or their spouse.
Slip op. at 10-11 (emphases in original). This too is a surprising conclusion, since CAAF recently cautioned that “because privileges ‘run contrary to a court’s truth-seeking function,’ they are narrowly construed.” United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). By interpreting in a proceeding to apply only to the admission of evidence and not to an order for production of records for an in camera review, the CCA has interpreted the exception as narrowly as possible, thereby construing the privilege as broadly as possible.
This interpretation also allows either side to call the mental health provider to testify at trial – without implicating the privilege at all – but prohibits pretrial questioning of the provider. That’s plainly nonsensical, and it undermines the purpose of the Rules “to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Mil. R. Evid. 102.
Furthermore, Judge Herring’s conclusion that the second clause of the exception ensures “admission of statements of child abuse against [the accused],” slip op. at 11, vaguely suggests that the second clause (like the first clause) applies only to inculpatory evidence. But the opinion doesn’t actually say that, and the exception’s use of the word or to separate the two clauses demands that they be read separately.
Judge Herring’s opinion also includes this observation about the second clause:
The exception contained in the second clause only applies in a proceeding in which one spouse is charged with a crime against a child of either spouse. In the case of an unmarried accused—where there is no “spouse”—the exception would never apply. We can summon no rational reason, and the RPI also presents none, why a married accused would be granted full access to a child-witness’s mental health records, but the unmarried accused would be denied all access to the mental health records of their child.
Slip op. at 10 (emphases in original). This is hard to believe. False allegations are not uncommon when a marriage falls apart, and the second clause of the exception is easily read to address a situation where an aggrieved party in a divorce makes a false claim that the other person committed a crime against their child (that is other than child abuse or neglect). Unmarried people can also be the victim of false allegations from a partner, of course, but the formality of marriage provides a bright line for this exception that could otherwise swallow the rule.
Furthermore, as the first clause exempts all “evidence of child abuse or of neglect,” regardless of whether the accused is married or not, Judge Herring’s concern for an unmarried accused only exists as the product of the CCA’s untenable and unjust analysis of the first clause.
It would have been far simpler for the CCA to apply the plain language of the exception and affirm the military judge’s ruling that found no privilege in this situation. Such a decision would have made the rule clear and simple. But instead, while decrying “the confusion created by Mil. R. Evid. 513,” slip op. at 1, the CCA makes any confusion much worse.