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National Crime Victim Law Institute

Protecting the Privacy of Military Victims of Sexual Assault

March 07, 2014

A Military Judge granted defendant’s pretrial discovery motion and ordered the production of a sexual assault victim’s privileged psychotherapist-patient records for in camera review (meaning review by the judge). This order came despite the fact that the records are privileged, were not in the possession of the government, and the victim’s clear statutory and constitutional rights to privacy. After the Navy-Marine Corps Court of Criminal Appeals denied the victim’s petition for a writ of mandamus, the victim petitioned the United States Court of Appeals for the Armed Forces for an emergency stay and a writ of mandamus. NCVLI filed an amicus brief in support of the victim’s petition, arguing that the trial court erred as a matter of law because defendant has no constitutional right to the requested pretrial discovery; an error that is causing immediate re-victimization of this victim and ultimately putting a message out to other military sexual assault victims that they too can expect no privacy (despite the law) if they access the justice system.