Military refuses to back down on arrest of civilian rape counselor

[rainbow4321]

http://www.mysanantonio.com/sharedcontent/APStories/stories/D8AJ41B00.html


The military refused to back down Tuesday from a threat to seek the arrest of a civilian rape counselor in a battle over records of her sessions with an Air Force Academy cadet who said she was sexually assaulted.

U.S. District Judge Edward Nottingham, who had asked military attorneys to voluntarily forgo arresting Jennifer Bier, scheduled a hearing Wednesday to decide the next step. The judge has said he was inclined to grant Bier's request to block her arrest.

Military defense lawyers say they need Bier's records for the court-martial of Air Force 1st Lt. Joseph Harding, charged with sexually assaulting two female cadets while attending the academy in Colorado Springs in 1999 and 2000.

Bier, a therapist in private practice in Colorado Springs, counseled one of those women. Bier has said surrendering her records would be unethical and she would go to jail first. Harding's attorneys say his right to a fair trial supersedes the alleged victim's right to privacy. Air Force prosecutors have said they support the defense subpoena for Bier's records.

[Pacifist Patriot]

1. I have to side with the counselor here.

Those records are not hers to hand over without her patient's permission. I applaud her decision.

[LaurenG]

2. I think she'll have to surrender copies of the records

It's the law when they are subpoenaed.

[Horse with no Name]

3. Patient-Doctor privelege is invoked

Her records can't be released without her permission.
She didn't commit a crime.

[LaurenG]

10. I still believe she will be forced to turn them over, with a court order

Edited for spelling error

May a covered entity disclose protected health information in response to a court order?
Answer
Yes. A covered entity may disclose protected health information to comply with a court order, including an order of an administrative tribunal. Such disclosures must be limited to the protected health information expressly authorized by the order. See 45 CFR 164.512(e)(1)(i).


See questions and answers 2,3,4 see if you can tell. It appears to me the therapist will have to comply.



http://answers.hhs.gov/cgi-bin/hhs.cfg/php/enduser/std_alp.php?p_sid=8cScMuHh&p_lva=189&p_li=&p_page=1&p_cat_lvl1=%7Eany%7E&p_cat_lvl2=%7Eany%7E&p_search_text=court+ordered+release&p_new_search=1

[lenidog]

4. I am pretty sure you are right

[Kelvin Mace]

5. I would burn them first

before i would let them go.

They are only doing this to punish women from daring to report rapes.

[Demit]

6. Also I think this is part of a larger effort by the govt to establish

their supremacy over any privacy rights, in any realm. To increase its power until it is an absolute power, over all.

[Richard Steele]

8. I agree, someone is trying to set a new, more totalitarian, PRECEDENT

QUOTE:
"Bier claims she is protected by Colorado law, which makes mental health records privileged. The military says Bier can't rely on that law, because the case is in military court, which doesn't recognize patient privilege to the extent civilian law does, according to the military's motion."

So basically, the military is saying that:
THE VICTIM has no right to privacy because she was RAPED BY A MEMBER OF THE MILITARY.
They are argueing that a US citizen RAPED by a soldier has fewer rights than someone raped by a civilian.

That's gotta be the most twisted, Orwellian BULLSH*T I've heard in...
well, sadly, in a couple of days.

[northzax]

18. it's worth noting that the victims were also military

cadets at the Academy, therefore subject to Military discipline. They gave up the strict right to medical privacy, especially concerning mental health, when they joined the air force. I believe that cadets are subject to UCMJ, which specifically states that Officers and Administrative Personell have access to mental health records, if they can show they need them in the pursuance of their duties. Obviously, the prosecutor, judge and defense attorneys, probably all military, can show a need for them in the pursuit of their duties in this case.

ACCESS TO MEDICAL RECORDS

IAW AR 40-66, para 2.4a, patient medical information from medical records may be disclosed to officers and employees of DOD who have an official need for access to the record in the performance of their duties. AR 40-66, para 2.5e states that Military Treatment Facility (MTF) commanders or patient administrators will determine the legitimacy of the request for patient medical information or medical records. Additionally, AR 40-66, para 2.2e & 2.5f. state that when medical information is officially requested for use other than patient care, only enough information will be provided to satisfy the request. http://www.lewis.army.mil/ig/trends.htm#medical

[Solly Mack]

7. Their only goal is to use the records against the victim

The defense lawyers are hoping to find something in those records to discredit the victim. If they can't bring her past into court, they can bring those records that *might* include some of her past, and by doing so, influence the verdict.

They can claim the records will only be seen by the judge (for now), but they'll be seen by the defense as well.

I hope Bier sticks to her guns.

[Iowa]

9. A friend of mine is a psychologist in private practice...

He and his partner keep only very minimal records. They take cryptic notes that would be very difficult to decipher. If a trusted professional needs information to help the patient, they write a report with only as much detail and information as necessary, and only with the patient's permission. Otherwise, if they send info to some entity like an insurance company or a benefits provider (with the patient's permission) they send junk that nobody can really decipher. There's absolutely no need to send a narrative about the nitty-gritty details of someone's problems to every Tom, Dick, or Harry who asks - even if the patient has granted permission. The best way to prevent that is to stop creating detailed records. I wouldn't go to a therapist who kept detailed records of everything I said. It's important to ask.

[drduffy]

11. I am a psychologist in private practice

and your friends are correct. Any documentation is accessible by the court. But an attorney can subpoene them but I could deny him/her. Then a case to provide them would have to be made before a judge. The court could - based upon the argument provided by the attorney - order them to be provided or not... depending upon the evidence. But, in any case, records are susceptible and for something truly private, don't write it down. Of course, the court or an attorney could order you/me to testify (and they have) and then I'd best be careful before committing perjury.

edit for spelling

[newswolf56]

12. Hidden Issue: Dominionism in Action

I support the counselor but agree with the psychologist that eventually it will be up to some judge whether she has to disclose her patient's records. Bottom line, there is ultimately no Constitutional right to privacy, only case-law that tends to acknowledge that right.

And let us not forget the real (but hidden) issue here: from the top of its chain-of command downward, the Air Force Academy has become a domain of Dominionism, the Christofascism that rationalizes theocratic tyranny, and under that strictly Biblical ideology (for which Google), women have no rights -- they are first the property of their fathers, then the property of their husbands. Moreover, rape and religious Fundamentalism -- Dominionist or not -- go hand-in-glove. Thus the Air Force Academy's probable objectives are (1) to discredit the complainants; (2) to discourage female applicants; and (3) to protect its reputation. Given these circumstances, the complainants' chances for receiving justice are nil -- about the same as those of a falsely accused black man being acquitted by an all-white jury in the pre-Civil-Rights-Movement Ku Klux South.

[Voltaire99]

13. Agreed.

Nothing resembling humane justice will issue from that sewer of Christian fundamentalist misogyny. The pursuit of the records is a typical fishing expedition.

Nice take on the case and welcome to DU.

[rainbow4321]

14. Fed. judge refuses to protect civilian rape counselor from military arrest

http://www.mysanantonio.com/sharedcontent/APStories/stories/D8AJNP2G1.html

A federal judge Wednesday refused to protect a civilian rape counselor from arrest for her refusal to turn over records in an Air Force rape case that is scheduled for court martial.

A military judge issued an arrest warrant for Jennifer Bier when she refused to comply with a subpoena from the attorneys for Air Force 1st Lt. Joseph Harding, charged with sexual assault.

Bier, a clinical social worker who counseled one of the accusers in the case, said civilian lawyers who have tried to get her records always back off when told her files are protected by state confidentiality laws.

Harding is charged with sexually assaulting two female cadets while he attended the Air Force Academy in Colorado Springs in 1999 and 2000

[RatRacer]

15. If you were the accused...

...and you were innocent, would you think it was reasonable for the doctor to withhold the records, especially if they could be a key piece of a defense that would keep you out of jail?

[cap]

16. the records are ususally twisted about to

imply that the defendent is unstable or sexually promiscuous.

The chances that the records are a "key piece of defense" for someone who is innocent are slim.

[cap]

17. if everyone is so darn Christian at the AF Academy

why are the guys having so many problems keeping the willies in their pants?

[MountainLaurel]

20. It's about power and control

And keeping those darn womenfolk in their place -- these female cadets should be back at home havin' babies, not getting ready to fly jets. So, rape meshes well with evangelical Christianity. And has little to do with keeping their willies in their pants.

[Name removed]

19. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MaryBear]

21. I hope the counselor has an excellent attorney.

This is greatly concerning. Those records should not be available for this purpose. Unfortunately, the judge does have the power to grant access to the court - at least, in California. Not sure about Colorado. I hope the counselor has excellent input from her professional organization. Maybe NASW will take this on?

[BiggJawn]

22. When did Military Courts get jurisdiction over Civilians?

Oh, that's right, it's on page 2945 of the USA PATRIOT Act, isn't it?
:sarcasm:

[RobinA]

23. I Take It

from the tone of this thread that the consensus among posters is that the accused doesn't have the right to defend himself?