In the ongoing debate over how the military should reform its handling of sexual assault, one case has gotten more attention than the rest. Almost two years ago, one female midshipman at the U.S. Naval Academy says she was raped by three male midshipmen on the football team at an off-campus party. Two of the accused midshipmen have already had charges against them dropped, but one will stand trial in military court in March. As hearings progress, the military has been forced to deal with an issue that's controversial in courts across the country — whether or not a judge should see a victim's mental health records.
The defense in the Navy case has asked to see the alleged victim's counseling records. As Annys Shin at The Washington Post reports, the alleged victim stopped going to therapy once she realized that her records could be used against her in court. Shin explains,
Fueling the outrage among victims’ rights advocates is a perception — confirmed by both civilian and military lawyers — that requests for victims’ records are far more routine in military courts than in civilian ones. Some advocates cast the situation in military courts as a disturbing throwback to an era before the advent of rape crisis centers and the victim’s rights movement.
In criminal cases like this one, defense lawyers go after a victim's mental health records in order to undermine her credibility and poke holes in her story. The judge is always the first one to see the records when defense attorneys request them, and he or she then decides which parts of the records will be released to the defense. The judge in this case, Col. Daniel Daugherty, has already agreed to release parts of the alleged victim's records to the defense, despite the alleged victim's lawyers attempt to block Daugherty from reviewing them.
The alleged victim tells the Post, "It would upset me to have other people, especially the perpetrators, see the damage that’s been done."
This case will be a powerful example in Congress' continuing debate on reform. Sen. Kirsten Gillibrand wants to take sexual assault cases outside the chain of command. She has the support of many Democrats, as well as Sens. Ted Cruz and Rand Paul. The Senate will vote on her bill soon, and Gillibrand says she has almost 60 votes. Sen. Claire McCaskill has a competing bill that would not take cases outside the chain of command.