Privacy, Please

The Air Force has a bad case of subpoena envy.

"It doesn't happen to robbery victims, but it does happen to rape victims," she says. "It's victory by intimidation."

The victims aren't the only ones who are intimidated. Their caregivers -- doctors, therapists -- may start thinking twice about whether they should offer to help clients when they're unsure that their assurances of confidentiality will hold. "When a victim is seeking therapy and the care provider promises respect for confidentiality, implicit in that promise is that the therapist will stand up for that privacy when it's on the line," Murphy says. "People need to understand that if holders of this kind of material don't stand up and say 'We object' -- cohesively and predictably and uniformly -- the message gets sent that privacy doesn't matter that much."

But it does. It matters enough that Bier, who has worked in Colorado Springs for ten years and was acting without an attorney for weeks, was willing to face jail rather than surrender confidential records. "The way things stand now," Bier says, "the problem for myself and other practitioners, at this point, is if a military person comes in and asks what their rights are to confidentiality, I'd have to say I really don't know.

Jessica Brakey went public with her story in January 
2003.
John Johnston
Jessica Brakey went public with her story in January 2003.

"Here's the issue as I see it: The defendant does have a right to confront his accuser; his attorney can do that on cross-examination. The larger issue is whether or not the victims get privacy. It's not as if refusing to show a victim's records will inhibit the possibility of questioning the accuser. It won't. But it would definitely inhibit victims from seeking the help they need."

And as the past few years have shown in Colorado Springs, victims need all the help they can get.

So Murphy plans not just to fight for her client, but for the rights of private people -- "rape victims, the Rodney Dangerfields of the criminal justice system" -- to keep at least some things private. She'll file a comprehensive brief with the military court before the judge's next hearing in the Harding case, which is set for April 11. But she can also see this issue, like the Title IX federal lawsuit against CU that was dismissed last week, going all the way to an appeals court before she gets the ruling she wants, one that makes the military sit up and take notice. "I hope they make black-and-white rules about it," Murphy says. "That defendants have no business sending these subpoenas, and courts have no business allowing them."

She's going for real reforms that start at the top with the military leadership and trickle down into one woman's experience.

Jessica Brakey's experience.

"They don't want the way they're treating women down there to get out," Brakey said a few months after filing her rape charge. "It's a good old boys' network, and if you're a woman and you get assaulted and you report it, you can kiss your career goodbye."

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