On 24 May 2017, in LK v. Sanchez, the Army Court of Criminal Appeals (ACCA) attempted to clarify some aspects of the Military Rule of Evidence (M.R.E.) 513 which states that communications between a psychotherapist and his or her patient are privileged communications. The petitioner in the case before ACCA was the alleged child victim (LK) in a court-martial and was represented by her Special Victim Counsel (SVC) before ACCA. A SVC is an attorney who is specifically assigned to an alleged victim in a sexual abuse case free of charge. The SVC’s job is to represent the alleged victim in a sexual abuse case, they are not prosecutors or on the defense team. This is different than a Special Victim Prosecutor (SVP). A SVP is a specially trained prosecutor who assists and often leads the government’s prosecution of a sexual assault allegation.
In Sanchez, LK petitioned ACCA for “extraordinary relief.” The petition requested that ACCA set aside the military judge’s ruling that an in camera review of LK’s mental health records be conducted. In reviewing the petition, ACCA tried to clarify M.R.E. 513 and some of its exceptions. As stated by the court, M.R.E. 513 “gives unclear guidance to military judges evaluating whether mental health records should be 1) produced for in camera review; 2) released to defense counsel; and 3) admitted at trial.” The court reminded that M.R.E. 513 is a rule of privilege, not discovery. Generally, M.R.E. 513 allows a patient not to disclose private communications that he or she has had with any mental health professional for purposes of receiving treatment. However, there are seven exceptions to this general rule. The court admitted that the application of M.R.E. 513 and its exceptions has been problematic for military judges.
In Sanchez, the accused was charged with several child sexual offenses against LK. The defense requested production of LK’s mental health records stating that they were essential to the defense of the accused. The defense further stated that the records fell under exception (2) of M.R.E. 513 which states that communication is not privileged if it “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.” The court explains that there are two parts to this exception. The first refers to communications that show that abuse occurred. In Sanchez, the defense wanted the records to show that abuse did not occur. Therefore, the court stated that defense’s request was not valid with regard to the first part of exception two. The second part of the exception refers to communication in a proceeding in which one spouse is charged with a crime against a child of either spouse. The court clarifies that this piece of exception (2) unlike the first, is a rule that does not apply to disclosure of communications, but instead to admissibility at trial. This part of the exception prevents one spouse from asserting this privilege to prevent admissions of child abuse against themselves or their spouse from being admitted at trial.
Finally, ACCA granted the petition in part, but stated that the accused could file supplemental matters to further detail their request for disclosure. ACCA went on to explain that in order for a defense counsel in a court-martial to support disclosure of mental health records essential to the defense of an accused, they must do more than speculate about their importance. If mental health records are essential to one’s defense, an experienced defense counsel must make a clear case as to why they are not privileged under M.R.E. 513. An attorney must be ready for the case that will likely be made by the SVC regarding the alleged victim’s records or communications. It takes experience to know when mental health records are needed for a defense. It also takes experience to know which exception applies and how to thoroughly argue it to the military judge. I have this experience. I have argued many M.R.E. 513 motions and am prepared to do it in your case or your loved one’s case. Call me for help. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.