Privacy, Please

The Air Force has a bad case of subpoena envy.

The Kobe Bryant case. The University of Colorado football-recruiting mess. The Air Force Academy sex-assault scandal. "If you asked me what state all this was happening in," says attorney Wendy Murphy, "I would put Colorado near the bottom of the list."

That's because this state had developed a reputation as one of the most progressive in protecting the privacy of rape victims. But the past two years have turned that reputation on its head. And last Friday, Murphy -- a Boston lawyer who teaches at the New England College of Law -- got down to our level when she signed on to represent Jennifer Bier, the Colorado Springs therapist who's been subpoenaed by the Air Force to surrender confidential records of her treatment of Jessica Brakey.

If anyone has earned her right to keep some things private, it's Brakey. Because she's given the public so much more.

After visiting the Air Force Academy on a fifth-grade field trip, Brakey knew she wanted to go to school there. She was attracted to the discipline of military life, idolized the Air Force and worked hard to get accepted into the academy. And then, just before the start of her sophomore year, an upperclassman in charge of a training exercise assaulted her. Brakey didn't report the crime right away, but her behavior was telling. She started having nightmares, started having trouble in class, started getting into fights with other cadets -- including one that resulted in Brigadier General Taco Gilbert notifying her in August 2002 that he was initiating discharge procedures.

After talking with a former counselor and a campus sex-assault support group, Brakey filed a report on August 21, 2002, stating that she'd been raped by a supervising cadet two years earlier -- a cadet who'd since graduated from the academy and was already in the service. "The number-one reason cadets don't report is because they're in denial," Brakey said a few months later. "No one wants to admit they were raped. And number two, cadets fear retribution. No one wants to make waves; it's not worth losing your education over."

It was over for Brakey on October 31, 2002, when Lieutenant General John Dallager recommended that she be given an honorable discharge and placed her on immediate leave.

Brakey did not go completely quietly. That November, she sent an impassioned e-mail to media outlets around the state, describing a culture at the academy that often punished the victims of sexual assaults rather than their alleged assailants. That initial message led to "The War Within," Julie Jargon's story in the January 31, 2003, issue of Westword, which led to coverage around the country as dozens of other women came forward with their stories about physical mistreatment by academy cadets and psychological mistreatment by academy administrators, which led to a half-dozen federal investigations. And finally, court-martial proceedings were initiated against Lieutenant Joseph Harding, who's been formally accused of raping Brakey and another woman at the academy while he was a cadet there.

That case, in turn, has led to numerous media entities -- including Westword-- being subpoenaed by the Air Force for records of their interviews with Brakey. (The quotes included here come from stories already published in Westword, which are available in our online archives at www. westword.com.) But we're in good company: Bier, an independent therapist Brakey saw off campus, also received a subpoena demanding confidential treatment records -- and a threat that she could be charged with contempt of court if she did not produce them.

Instead, late last week, she produced Wendy Murphy. "I've been wanting to deal with the military on this issue for ten years," says Murphy. "There's a lot about the underlying principles that needs unpacking. As an academic activist, I do a lot of unpacking."

And there are many items in this box that deserve to be held up, shaken out and scrutinized in the light of day -- from the first academy investigation into allegations of sexual assault back in 1993 through the memo that acting Secretary of the Air Force Peter Teets sent to Secretary of Defense Donald Rumsfeld late last month, recommending that none of the senior officers connected with the Air Force Academy scandal be disciplined, even though earlier government investigations criticized their performance. But the no-discipline recommendation "was the Air Force Secretary's decision to make," says a Pentagon spokeswoman, and so everyone from Dallager to Gilbert -- who compared a female cadet's "high-risk" behavior to walking down a dark alley "with hundred-dollar bills hanging out of my pockets" -- is off the hook.

The same cannot be said for Bier or Brakey, who was already on the hook to testify in the Harding case but now could have her most personal, privileged secrets revealed.

Not if Murphy has her way, however. For starters, she wants to put the burden back where it should be -- and that requires determining how the defendant got permission to send such a subpoena. "Nothing in the Constitution allows the defendant even to ask," she says.

There are bigger questions, too, "policy questions about what happens to real people, innocent people, who've already been harmed enough," Murphy continues. "We expect people to participate in the justice system because they have evidence that will help the government protect all of us from harm...but we force them to choose between privacy and prosecution, healing and justice.

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