Private Records Not Always Safe with Social Workers

The case of a rape counselor, threatened by a military judge with arrest for failing to turn over records involving an alleged victim of sexual assault, sheds light on a little known fact. Many social workers, therapists and counselors routinely hand over their records without a legal fight.

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A military judge is threatening to arrest a rape crisis counselor if she doesn't turn over patient records. The case is linked to the sex-abuse scandal at the Air Force Academy in Colorado. As NPR's Libby Lewis reports, this case is unusual because many counselors simply turn over confidential records without a legal fight.

LIBBY LEWIS reporting:

Jennifer Bier is a rape crisis counselor in Colorado Springs. She has counseled one of two women who have accused a lieutenant at the Air Force Academy of sexual assault. He faces a court-martial for those charges. As part of a broad request, defense lawyers subpoenaed the woman's private counseling records of her sessions with Jennifer Bier. That broad request, says Jack King, was to find any information that could help their client's defense. King is with the National Association of Criminal Defense Lawyers.

Mr. JACK KING (National Association of Criminal Defense Lawyers): Why? Because you can. And if you can, then you must, because what's at stake here is life and liberty.

LEWIS: Such subpoenas in sexual-assault cases are issued frequently, says Colonel Jeff Rockwell. He heads the Military Justice Division of the Air Force. He says Bier's case stands out because she didn't hand the records over.

Colonel JEFF ROCKWELL (Military Justice Division, United States Air Force): Specifically with these types of records, they're subpoenaed many times. Most of the time when records are subpoenaed, the subpoena is complied with.

LEWIS: Counselors often hand over those confidential records in both military and civilian courts without taking any steps to curb requests for private information. Wendy Murphy is a victims' rights lawyer and an expert in sexual-assault cases. She's representing Jennifer Bier.

Ms. WENDY MURPHY (Lawyer): I've seen anecdotally many, many examples of therapists who will usually whisper to me--they don't like admitting this, but they'll whisper to me that they had to turn a file over because they didn't have enough money to hire a lawyer to go to court and stand up for the privacy interests at stake. And literally--and I believe them--they would be saying, `I would have to give up half my salary to pay a lawyer to go in and defend against a subpoena.'

LEWIS: Therapists often fall short when they weigh the costs of invoking a judge's wrath, like Bier has, vs. the costs of handing over the records; so says Brian Welch, a psychologist and a lawyer who advises counselors who are being pressed for confidential records.

Dr. BRIAN WELCH (Psychologist, Lawyer): My sense is there certainly are more people who would just capitulate and turn over the records than there are people who go to the brink of being found in contempt of court.

LEWIS: The American Psychological Association and the National Association of Social Workers don't track these cases. Welch says even with the layers of legal protections of confidential records, there's a wild card here. It's in the widely varying attitudes that judges have about how strong the protections should be for confidential mental health records. He says some judges are smart about this topic.

Dr. WELCH: I've also been in front of judges for whom mental health is all a bunch of nonsense to begin with and that the patient and the therapist are just being too precious. And they have very little respect for the sensitivities that surround psychotherapy records.

LEWIS: For Jennifer Bier, the counselor threatened with arrest, she wants to help force the courts to get clear on this issue.

Ms. JENNIFER BIER (Counselor): What are therapists supposed to tell rape victims? `Well, we can really assure you some confidentiality in case the government wants the records, and then we can't.'

LEWIS: Bier has challenged the military judge's arrest warrant in federal court. Libby Lewis, NPR News.

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