Rape counselor won’t seek preemptive relief from Supreme Court
DENVER ” A civilian rape counselor facing arrest for refusing to turn over an alleged victim’s records to the Air Force said Monday she will wait to see whether the military tries to jail her before she asks the U.S. Supreme Court to intervene.
Lawyers for 1st Lt. Joseph Harding, who is accused of raping two Air Force Academy cadets when he attended the academy, won a military court order requiring Jennifer Bier to turn over her records in one of the cases.
A military judge issued an arrest warrant for Bier last month after she refused to comply. Two federal courts rejected Bier’s requests to bar U.S. marshals from arresting her.
Her attorneys had considered asking the high court to intervene but decided to await the military’s next move.
“It’s not a challenge to (arresting officers), but we can’t address it until it happens,” lead attorney Wendy Murphy said. She said the Supreme Court may be asked to consider the case in the future.
A spokesman for the U.S. attorney’s office in Denver, which has represented the Air Force during Bier’s fight in federal court, said he could not comment on whether she was under an immediate threat of arrest.
“This case is somewhat unusual,” said the spokesman, Jeff Dorschner. “There have been circumstances where there’s been tension between military courts and civilians, but this circumstance is unusual.”
Bier’s client was among dozens of female cadets at the Air Force Academy who said they were ignored or punished after telling military superiors they had been sexually assaulted. Their stories ignited a scandal in 2003 that led to several investigations and the ouster of top commanders at the prestigious military academy in Colorado Springs.
Harding’s court-martial, the military equivalent of a trial, begins Wednesday in Texas.
Under the military subpoena, Bier’s records would be reviewed by a military judge who would determine whether the information was relevant to Harding’s case.
Murphy, a professor at the New England School of Law and a former prosecutor, said the civilian courts have refused to rule on the central issue of Bier’s case: whether the military has the right to force Bier to release information about her private conversations with an alleged rape victim.
“They forced us into this position by not answering the questions,” Murphy said, adding that Bier had no intentions of turning over the records.
“She’s dedicated to her position from an ethical position, and there are thousands of people lined up behind her,” Murphy said. “This isn’t one renegade therapist standing on principle to be a martyr. This is a therapist respecting her client’s right to heal.”
The civilian courts got involved when Bier, of Colorado Springs, challenged the military arrest warrant in federal court in Denver.
A U.S. district judge denied Bier’s request to block her arrest, arguing that Harding’s right to confront his accuser outweighed Bier’s claim of psychotherapist-patient privilege. A two-judge panel of the 10th U.S. Circuit Court of Appeals told Bier to fight the subpoena in a military court.
Murphy said Monday that option isn’t available because military law provides that only direct parties of Harding’s court-martial, such as defense attorneys and military prosecutors, can appeal the subpoena.
Murphy said Harding’s military prosecutors have not fought to seal the records.
She said about 60 sexual assaults have been reported in the Air Force since 1993, and none have resulted in a conviction.
“They don’t really have much interest in winning rape prosecutions in the military,” she said. “This victim was the whistle blower. I’m certain they don’t like whistle blowers.”
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