CAAF decided United States v. Jasper, No. 13-0013/AR, 72 M.J. 276 (opinion) (CAAFlog case page) on June 4, 2013, finding that the trial judge erred when he prohibited the Defense from introducing statements made by the child victim to her pastor concerning her allegations that the Appellant sexually abused her, after the trial judge concluded that the victim did not waive the clergy privilege despite both her and her mother giving the pastor permission to disclose the statements to the trial counsel. CAAF reverses the Army CCA and sets aside the findings and sentence, and authorizes a rehearing.
Judge Ryan writes for a unanimous court.
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, 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, in violation of Articles 120 and 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 convictions are all related to sexual conduct between the Appellant and his stepdaughter [BK], alleged to have occurred in 2006-2007, and then again in 2009. Prior to trial, the Trial Counsel notified the Defense that BK’s pastor had disclosed (with the permission of both BK and her mother AJ), to the Trial Counsel, that in 2007 BK told the pastor that she had fabricated the earlier allegations to get attention. The Defense then sought to call the pastor at trial to testify about this admission, but BK and AJ asserted the clergy privilege (having been advised by the Trial Counsel that they could do so).
The Defense asserted that the privilege was waived when the pastor was authorized to disclose the communications to the Trial Counsel. But the military judge found no waiver and applied the privilege to prevent the testimony of the pastor or any examination regarding the statements made to the pastor. BK and AJ then testified at trial, constituting the principle evidence against the Appellant, and the Trial Counsel argued in closing that BK was credible, saying:
“you can’t make [BK’s testimony] up,” “the kinds of details [that BK recalled] that if you’re making something up, just don’t come out,” and “[i]t went down just the way she explained it.”
Slip op. at 6.