Victim advocate—victim privilege

(a) General Rule. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim. (b) Definitions. As used in this rule: (1) “Victim” means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense. (2) “Victim advocate” means a person, other than a prosecutor, trial counsel, any victims’ counsel, law enforcement officer, or military criminal investigator in the case, who: (A) is designated in writing as a victim advocate in accordance with service regulation; (B) is authorized to perform victim advocate duties in accordance with service regulation and is acting in the performance of those duties; or (C) is certified as a victim advocate pursuant to federal or state requirements. (3) “Department of Defense Safe Helpline staff” are persons who are designated by competent authority in writing as Department of Defense Safe Helpline staff. (4) A communication is “confidential” if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication. (5) a victim’s “Evidence of records or communications” means testimony of a victim advocate or Department of Defense Safe Helpline staff, or records that pertain to communications by a victim to a victim advocate or Department of Defense Safe Helpline staff, for the purposes of advising or providing assistance to the victim. (c) Who May Claim the Privilege. The privilege may be claimed by the victim or the guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a counsel representing the victim to claim the privilege on his or her behalf. The victim advocate or Department of Defense Safe Helpline staff who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, Department of Defense Safe Helpline staff, guardian, conservator, or a counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary. (d) Exceptions. There is no privilege under this rule: (1) when the victim is dead; (2) when federal law, state law, Department of Defense regulation, or service regulation imposes a a information to duty communication; contained report in (3) when a victim advocate or Department of Defense Safe Helpline staff believes that a victim’s mental or emotional condition makes the victim a danger to any person, including the victim; (4) if the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate or Department of Defense Safe Helpline staff are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud; (5) when necessary to ensure the safety and security of military personnel, military dependents, military property, the information, accomplishment of a military mission; or classified or (6) when admission or disclosure of a communication is constitutionally required. (e) Procedure to Determine Admissibility of Victim Records or Communications. (1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must: (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and (B) serve the motion on the opposing party, the military judge and, if practicable, notify the victim or the victim’s guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subdivision (e)(2). (2) Before ordering the production or admission of evidence of a patient’s records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. III-37 The right to be heard under this rule includes the right to be heard through counsel, including Special Victims’ Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members. (3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed: records or communications. Prior likelihood (A) a specific, credible factual basis demonstrating a records or reasonable communications would contain or lead to the discovery of evidence admissible under an exception to the privilege; that the (B) that the requested information meets one of the enumerated exceptions under subdivision (d) of this rule; (C) that the information sought is not merely cumulative of other information available; and (D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources. (4) Any production of disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subdivision (d) of this Rule and are included in the stated purpose for which the records or communications are sought under subdivision (e)(1)(A) of this rule. (5) To prevent unnecessary disclosure of evidence of a victim’s records or communications, the military judge may issue protective orders or may admit only portions of the evidence. (6) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 701(g)(2) or 1113 and must remain under seal unless the military judge, the Judge Advocate General, or an appellate court orders otherwise. III-38 SECTION VI WITNESSES