April 2, 2005
A Colorado Springs therapist wasn’t confronted Friday by federal marshals after refusing to relinquish records of her dealings with a former Air Force Academy cadet who alleged she was raped in 2000.
Jennifer Bier, who counseled Jessica Brakey, said she e-mailed Air Force authorities Thursday saying she will appeal a subpoena of her therapy records. It’s the latest turn in a case that creates a clash between two sets of laws — Colorado’s protection of therapist records and military law that requires they be disclosed if they contain information pertinent to a case. Brakey’s case came to light during the academy sexual assault scandal, which arose in 2003 when female cadets said their cases were mishandled. In television and newspaper interviews, Brakey accused 1st Lt. Joseph Harding of raping her in mid-2000 when she was a sophomore. She reported the attack in November 2002. She has said she delayed reporting, “because I kept thinking that since he didn’t beat me or kill me, I was fine, and maybe it was partially my fault.” After her behavior grew erratic, her grades suffered and she had nightmares, she reported the case and academy officials told her she was being investigated for mental health problems, Brakey has said. She left the academy for health reasons, she said. Harding, who graduated from the academy in 2002, is stationed with the 14th Operations Support Squadron at Columbus Air Force Base in Mississippi. Harding also is accused of assaulting a female airman. Therapist Bier said she wasn’t notified of a Feb. 8 hearing at which the subpoena was discussed. “My position is these are private conversations with a client and therapist,” she said, and thus shielded from disclosure by Colorado law. Bier said Brakey recently told her she wants the records kept private. Defense attorneys sought the records, and Col. David Brash, chief judge of the Air Force trial judiciary, ordered them produced. The deadline was Friday, but Brash hasn’t ordered Bier’s arrest. It’s unclear what the next step will be. Lt. Col. Don Bethel, who oversees defense attorneys at Randolph Air Force Base, where Harding’s defense team is based, said Bier’s records might never be released publicly. The judge wants to review them to see whether they contain material pertinent to the defense. If they don’t, they will be returned to Bier. If they do, they may be given to defense attorneys, he said. Bethel said although military law recognizes the patient-therapist privilege, an exception allows disclosure to meet a constitutional requirement. In this case, the constitutional requirement is the defendant’s right to information that might clear the accused, he said. He said federal law pre-empts state law. Military law is considered federal law, he said. Harding’s court-martial is pending as lawyers conduct discovery of evidence, which includes the therapist’s records. CONTACT THE WRITER: 636-0238 or email@example.com