The SanityPrompt

This blog represents some small and occasional efforts to add a note of sanity to discussions of politics and policy. This blog best viewed with Internet Explorer @ 1024x768

Monday, June 27, 2005

UPDATE: Colorado Therapist Case

Academy rape trial on hold -- DenverPost.com: "Randolph Air Force Base, Texas - A military judge on Friday decided to indefinitely postpone an Air Force Academy sexual assault court-martial, after a civilian rape counselor refused to turn over her notes of conversations with the alleged victim. Col. David Brash's ruling, released Friday morning, followed a day of closed hearings during which attorneys for 1st Lt. Joseph Harding argued they could not provide an adequate defense unless they knew whether civilian therapist Jennifer Bier had information relevant to the case in her notes. "

This is pretty pathetic in a number of ways. Essentially, the Court is arguing that it cannot prosecute rape cases unless it can peer into the private conversations of a therapist and her patient and scan their dialogue for any discussion of the alleged rape. Note that the judge does not want the notes in order to gather evidence for the prosecution. Rather he says that the notes are essential for the defense of the accused - Lt Harding. Imagine the implications of this. Anyone who brings a rape or sexual assault charge must agree that every crevice of their personal life is subject to scrutiny already. Now this would extend to anything they write such as an email or letter, a diary entry or a conversation with a doctor. This rips open any bound to privacy remaining for the accuser.

The prosecutions case is a thin one to begin with as it is essentially a he-said, she said case. The alleged victim waited two years before bringing her charges and waited until her Academy superiors noticed changes in her behavior and probed to find out why. Not that Harding looks like an innocent before a vengeful woman as he also faces charges in another assault case.

Harding still faces court- martial at Randolph Air Force Base near San Antonio on a second, lesser count of "indecent assault" involving another former cadet. If convicted, he could be expelled from the Air Force and sentenced to a maximum of five years in prison. The sexual assault charge carried a maximum life sentence.

Still, the course of this case should discomfit any observer of such proceedings. Although Academy officials learned of the alleged rape in 2002, they waited until the political firestorm to file charges in 2004. Few of the numerous rapes reported at the academy have led to prosecutions. And the military has succeeded in raiding the alleged victims personal medical files already. All in all, not a good day or a good presentation of military 'justice.'

There was a two-year delay between the alleged rape and Brakey's report to academy officials, so no direct physical evidence exists. As a result, Brakey's credibility is integral to the prosecution's case.

Brash's decision favors Harding's constitutional right to confront his accuser and examine all evidence that might be helpful to him above Brakey's expectation and Bier's pledge that their conversations would be private.

Brakey has said she was attacked by Harding, a cadet commander, in 2000. But she didn't report the alleged assault until August 2002, after academy officials became concerned about changes in her behavior. By then, Harding had graduated, and the academy moved to honorably discharge Brakey from the Air Force. She went public with her allegations and generated a new round of congressional and media scrutiny of the academy, and the Air Force's treatment of sexual assault cases.

It wasn't until May 2004 that the Air Force revealed Harding would be charged with sexual assault in the Brakey case and indecent assault in a 1999 case, also at the academy.

The defense requested and received medical and counseling reports on Brakey from Air Force doctors who had treated her, Murphy said. But Brakey also sought counseling from a civilian - Bier - and when Harding's attorneys came for her records, she refused, and Brash threatened to jail her.

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