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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.

"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.

"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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