The military handles the discovery of a victim’s privileged medical records in a sex offense case with extreme care, balancing the accused’s right to a fair trial with the victim’s right to privacy. Military Rule of Evidence (MRE) 513 establishes a strong privilege for confidential communications between a patient and their psychotherapist. As a general rule, a victim’s therapy records are privileged and cannot be disclosed to the defense.
However, this privilege is not absolute. A defense attorney who has a good-faith belief that the victim’s privileged medical records contain specific information that is essential to the defense (for example, evidence that the victim has a history of making false allegations or a condition that affects their ability to perceive reality) can file a motion with the military judge. The motion must be specific and cannot be a mere “fishing expedition.”
The military judge will then conduct a private, in camera review of the privileged medical records. The judge alone will examine the records to determine if they contain the information the defense alleges and, if so, whether the accused’s constitutional right to present a defense outweighs the victim’s statutory right to privacy. If the judge finds that a specific piece of information is critical for a fair trial, they can order that that specific portion of the record be disclosed to the defense, while keeping the remainder of the records sealed and confidential.