PRESS RELEASE: Protect Our Defenders Calls on President Obama & Navy Judge Advocate to Protect Victim’s Confidential Communications
FOR IMMEDIATE RELEASE
January 31, 2014
Contact: Brian Purchia, 202.253.(202) 253-4330, brian@protectourdefenders.com
*** PRESS RELEASE ***
PROTECT OUR DEFENDERS CALLS ON PRESIDENT OBAMA AND NAVY JUDGE ADVOCATE GENERAL TO HAVE NAVAL ACADEMY VICTIM’S BACK AND PROTECT HER CONFIDENTIAL COMMUNICATIONS WITH THERAPIST
The President creates the military rules of evidence and President Obama should make sure they are properly enforced; Victim is out of time and needs the Judge Advocate General (JAG) of the Navy, VADM DeRenzi, to order military’s highest court (CAAF) to review victim privilege; Every moment that action is delayed further harms the victim in this case
Midshipman and rape survivor, subjected to over 30 hours of cross-examination, humiliation and bullying, is now being forced to turn over private communications with therapist
WASHINGTON, D.C. – Last year, the victim in the ongoing Naval Academy sexual assault case was subjected to abusive and inappropriate questioning for almost thirty hours during an Article 32 pretrial hearing in violation of the military’s rape shield rule. Now, she is being faced with yet another point of failure in the military justice system. The midshipman, who faced unconscionable attacks on her character and dignity, is having her privacy violated once again, as her confidential communications with her therapist have been ordered to become public by a military judge – highlighting yet another fundamental flaw of our broken military justice system.
“We have seen this playing out in case after case, where, through the misapplication of military rules, a patient’s private and confidential communications with his or her therapist are forcibly released without justification,” said Nancy Parrish, President of Protect Our Defenders. “This is a blatant violation of victims’ rights according to the military’s own rules of evidence, and it is forcing those who have suffered extreme trauma to choose whether to seek the help they need or pursue justice in their case. This has a chilling effect on all victims, and further hinders the military’s ability to fight against rape and sexual assault in its ranks. The President creates the military rules of evidence and President Obama should make sure they are properly enforced. It is no wonder 90% of victims choose not to report.”
Military judge, Col. Daniel Daugherty, ordered the victim’s therapist to turn over records of private communications with the victim in violation of her privacy rights. This order ignores the protection provided by the military rules of evidence. On Tuesday, the Navy-Marine Corps Court of Criminal Appeals (CCA) denied the victim’s petition to reverse Col. Daugherty’s order. The victim’s last chance to protect her rights is for the Navy Judge Advocate General, Vice Admiral (VADM) Nanette DeRenzi, to certify the issue to the Court of Appeals for the Armed Forces (CAAF), the military’s highest court.
Today, Protect Our Defenders called on VADM Nanette DeRenzi to order the CAAF to hear the victim’s case. Protect Our Defenders also released letters that they sent to the Commander-in-Chief and DeRenzi in support of the victim.
A member of the victim’s legal team, Ryan Guilds of Arnold & Porter, part of the Protect Our Defenders Pro Bono Legal Network, released the following statement:
“No one disputes the urgent need for mental health services for sexual assault survivors. For these services to be meaningful, survivors need to know that their sensitive and confidential medical records are protected from disclosure. For this reason, every jurisdiction in the country recognizes and enforces meaningful privacy protections for sexual assault victims’ therapy records — every jurisdiction except the military.
“Despite repeated efforts to protect her records, my client faces the unwelcome reality that her therapy records have been and will continue to be disclosed to the very men who raped her. Disclosure of these mental health records is not necessary to protect the constitutional rights of the defendants, re-victimizes the survivor, discourages her from getting the help she desperately needs, and sends a chilling message to other military sexual assault survivors that if they report a rape they will likely see their highly personal medical records provided to their assailants.”
The Naval Academy sexual abuse scandal has put the broken military justice system on public display, and served as the catalyst for reform of the Article 32 procedures. After bravely coming forward to report her rape despite attempts to intimidate and silence her, the midshipman victim continues to be re-victimized by a fundamentally flawed justice system. Now, she faces another egregious encroachment on her rights—the right for her private communications with her therapist to remain confidential.
The experience of the victim in this case is representative of the military justice system’s disregard for victims’ rights, and one reason so many victims do not report their assaults. Judges throughout the military frequently order the disclosure of sensitive and confidential psychotherapy records of sexual assault victims. This violates the rule established to protect their rights. Military Rule of Evidence (MRE) 513 gives a patient the privilege and right to prevent the disclosure of any confidential communications made between the patient and his or her psychotherapist. Sexual assault victims must be able to rely upon this privilege when deciding whether to seek counseling or to report their assault. Unfortunately, military judges often ignore this rule, and order the release of privileged private communications and even force therapists to take the stand to serve as witnesses for the defense.
“Military judges across the country are misapplying narrow exceptions to this crucial protection, promulgated by the President of the United States, causing further harm to victims of sexual assault and rape in the military and undermining attempts to successfully prosecute these crimes. When victims have to risk their own health and last shred of privacy to pursue justice, it is clear the system is broken,” said Parrish. “VADM DeRenzi has the power to ensure CAAF hears this victim’s’ plea, and in the process ensure this right is protected for all victims.”
Military judges may not recognize the MRE 513 privilege because CAAF has never ruled on its applicability. CAAF’s guidance on MRE 513 is needed to protect victims as they seek to heal and to help the military eradicate sexual assault. The continued disclosure of victims’ deeply intimate counseling records is wrong, and inflicts a profound injustice on the men and women who serve our country. It is unfair and cruel to all victims of sexual assault to promise them privacy and then betray them by disclosing their private communications with their therapists.
Protect Our Defenders urges VADM DeRenzi to defend the integrity of MRE 513, and to take immediate action in certifying this issue to CAAF. Every moment that action is delayed further harms the victim in this case.
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Protect Our Defenders’ Letter to President Obama in Support of the Victim
https://www.protectourdefenders.com/downloads/MRE_513_Letter_012714_FINAL.pdf
Protect Our Defenders’ Letter to VADM Nanette DeRenzi in Support of Victim
https://www.protectourdefenders.com/downloads/513_Letter_to_VADM_DeRenzi_012714_FINAL.pdf
Petition to Court to Protect Confidentiality of Naval Academy’s Victim’s Communications with Therapist
https://www.protectourdefenders.com/downloads/US_v_Tate-513_writ_petition-as_filed.pdf
Midshipman Jane Doe vs. Midshipman Michael H. Miller Lawsuit
https://www.protectourdefenders.com/downloads/Doe_Complaint_9_5_13.pdf
Lawsuit: Naval Academy head should excuse self from court-martial decision in sex assault case
MSNBC: Naval Academy sexual assault hearing underscores flaws in system
http://tv.msnbc.com/2013/09/04/naval-academy-sexual-assault-hearing-underscores-flaws-in-system/
Washington Post: Accuser in Naval Academy rape case granted a day off from testifying
http://articles.washingtonpost.com/2013-08-30/local/41606712_1_herrington-witness-stand-accuser
MSNBC: Naval Academy sex-assault accuser seeks break in testimony, citing exhaustion
San Antonio Express-News: Hagel misses important opportunity
Legislation supported to pull sex-assault cases from chain of command
http://www.ctpost.com/local/article/Legislation-supported-to-pull-sex-assault-cases-4742418.php
About Protect Our Defenders: Protect Our Defenders is a human rights organization. We seek to honor, support and give voice to the brave women and men in uniform who have been sexually assaulted while serving their country, and re-victimized by the military adjudication system – a system that often blames the victim and fails to prosecute the perpetrator. Learn more about Protect Our Defenders at www.protectourdefenders.com or on Facebook at http://facebook.com/ProtectOurDefenders or follow us on Twitter at https://twitter.com/ProtectRDfnders.
Protect Our Defenders partners with Attorney Susan Burke, of Katz, Marshall & Banks LLP to advance lawsuits filed against the DoD and service academies for repeatedly ignoring rape, sexual assault and harassment, failing to prosecute perpetrators and retaliating against the victim.
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